Persistent Transparency: Baltimore surveillance plane documents reveal ignored pleas to go public, who knew about the program, and differing opinions on privacy

The private company responsible for the aerial surveillance program that flew over Baltimore recording the city and assisting the Baltimore Police Department in solving crimes, without the public knowing, delivered such an artful, effusive pitch to the embattled department that police really couldn't say no.

According to documents obtained through Maryland's Public Information Act, Ross McNutt, owner of and Chief Technical Officer for Persistent Surveillance Solutions (PSS), doggedly reached out to the Baltimore police and told the department his sort of surveillance could reduce crime and, better yet, wouldn't cost police much at all. The few hundred pages of documents and emails spanning June 2014 to August 2016 show email conversations between McNutt and Baltimore police officer Lt. Sam Hood, who heads Baltimore's CitiWatch program, which collects and processes footage from the stationary cameras police have erected around the city.

The slew of emails provides a look at the controversial program's evolution and shows a police department that was not necessarily engaged in calculated subterfuge regarding public surveillance but blundered multiple opportunities to be forthright with citizens.

The emails begin when McNutt reached out to Lt. Hood asking if the police would like to try an aerial surveillance program his company developed, which previously piqued the interest of the police in Dayton, Ohio. McNutt later explained to Lt. Hood that he has funds and just needs to get those funds administered through a private local nonprofit. The private nonprofit would then provide the money to the police, who could pay McNutt for the service. McNutt also brought up issues of constitutionality, transparency, and community concerns.

The surveillance was nixed in 2014, but McNutt reached out in the summer of 2015—post-Baltimore Uprising, amid a homicide spike—and the police department's interest increased. In September, McNutt informed Lt. Hood that the Arnold Foundation, a private organization based out of Texas and run by former hedge fund manager John Arnold, had agreed to provide the funds.

From there, the program was approved rather quickly. An Oct. 16, 2015 email confirmed that then-interim Commissioner Kevin Davis gave the technology the go-ahead. Later, it would come out that Davis took the initiative without informing the mayor, the City Council, or the governor about the plane circling Baltimore and recording public activity. Flights took place in January and February of 2016 and then began again in June, July, and August after receiving additional funding.

Documents show that the police took nearly all of McNutt's advice, assisting in money-moving logistics, and pretty much followed his lead except when it came to revealing the program to the community and to the city's political leaders. It wasn't until an August 2016 Bloomberg Businessweek article by Monte Reel, titled "Secret Cameras Record Baltimore's Every Move From Above," that city officials and Baltimore residents would learn of the secret program.

As the Baltimore Sun already reported, the documents show that while McNutt was still in pitch mode in August 2015—a year before the program was revealed to the public—he was already stressing transparency. McNutt also offered up a Supreme Court case that set a precedent for this kind of recording and continued nudging the police toward making the program known to the public.

Anatomy of a scandal

McNutt's emails to Lt. Hood leading up to the Bloomberg Businessweek story breaking are particularly fascinating. On Aug. 19, he told the police he had talked to reporter Monte Reel and claimed that the story wouldn't run until the BPD made the program public and approved the story for publication.

On Aug. 22, McNutt once again pushed the police to tell the public about the program, noted that this was always the plan, advised police to do it swiftly to prevent speculation and misinformation, and asked Lt. Hood to forward his email saying all of that to T.J. Smith, Chief of Media Relations for Baltimore Police.

The next day, Aug. 23, McNutt informed Lt. Hood that another publication, Wired, had also found out about the aerial surveillance. A few hours later, he sent a link to the Bloomberg Businessweek story, which had gone live. McNutt explained that the publication ran the story because Wired had found out and was going to run its own article. "We in no way intended it to come out as an article until after BPD had made a press release and made the program public," McNutt wrote. "When they heard that another organization was asking questions they rushed forward to press."

When City Paper reached out to McNutt the day after receiving the documents, he declined to comment, referring questions to T.J. Smith. "The Commissioner mentioned several times that we were planning to discuss publicly," Smith wrote in an email. "He also discussed the need to test and then speak about it. We've said, and will say again, if we had it to do over again, we would do some things differently."

In the emails, Lt. Hood did not respond when McNutt mentioned transparency. If conversation outside of email pertaining to issues of transparency occurred, Smith said, he was "not familiar with any other conversations that took place." He added that police "released applicable documents" to the public tied to the Maryland Public Information Act request.

In one email from February 2016, about a month or so into the program's implementation, Lt. Hood forwarded an email to McNutt via Sgt. William MacDonald which contained a link to a Reddit thread discussing FBI plane sightings among a few online amateurs who monitor air traffic patterns. "Just an FYI about Wide Area Surveillance. It is making its rounds on the internet," Sgt. MacDonald wrote to Lt. Hood, who forwarded the link to McNutt with the note, "here you go as requested."

On a less serious note: There was an entertaining email exchange around the same time in which Lt. Hood sent McNutt a still from CitiWatch featuring what looks like McNutt and others on a street downtown, along with the comment, "a souvenir from CitiWatch."

Still, in so far as there is any kind of "smoking gun" in these documents, it is how adamantly and how often McNutt encouraged Baltimore's police to go public with the program.

Who knew?

The documents also reveal some of the people who knew about the program even as the mayor, city councilpersons, the governor, and others did not. Some city lawyers had reviewed the program and there was a briefing on the program with the State's Attorney's Office on Aug. 12, 2016. Commissioner Davis clearly knew about it, though emails do show that he approved the program while he was still the Interim Commissioner (Davis was confirmed by the Baltimore City Council on Oct. 19; the email mentioning the program's approval is from Oct. 16).

Those who assisted in getting the money for the program were obviously aware of it, too. After the first trial run (or "phase" as its called in the documents), which went from January to February and was funded by the Baltimore Community Fund via the donation from the Arnold Foundation, the program needed another organization through which funding could be funneled for reasons that aren't entirely clear in the documents. McNutt, with the help of the police, reached out to Donald Fry, President and CEO of the Greater Baltimore Committee Foundation, Inc. (separate but tied to the GBC) and others at GBC, though the GBC ultimately decided not to fund the project.

Questioned about the emails, Mark Guidera Vice President of Communications & Marketing at the GBC provided this statement on behalf of the GBC Foundation: "The GBC Foundation, Inc. was approached about being a recipient of a grant for the use of a surveillance airplane for a law enforcement program. After careful consideration a decision was made not to become involved with the program. At no time did the GBC Foundation accept or disperse any funds for such a program."

In March of 2016, McNutt also reached out to Jim Bueerman of the Washington, D.C.-based Police Foundation, a private, non-partisan organization whose mission, its website says, "is to improve policing through innovation and science." The Police Foundation did assist in dispersing the Arnold Foundation donation. McNutt had first encountered Bueerman a few years earlier through Chief Richard Biehl of the Dayton police.

Over the phone, Jim Bueerman, the President of the Police Foundation, described his organization to City Paper as "the pass through," for the money "because the funder need[ed] a 501 C3," or a tax-exempt nonprofit. He stressed that the Police Foundation did not fund it and only accepted the funds on behalf of the Arnold Foundation donors who had wished to remain anonymous.

"In exchange for doing this," Bueerman said, his foundation was "assured that [they] would be given data and access to the people involved in the program so that [they] could do an evaluation of the program's effectiveness and try to access the impact on privacy concerns and civil liberties."

The Police Foundation had previously worked in similar capacity with drones and policing. This resulted in a guide that offers up how to use drones "in a way that enhances public trust and confidence" and more importantly, Bueerman said, "in a way that people don't find to be creepy or stepping over the line."

Bueerman didn't get the impression the program was hidden from the public. "I assumed people knew about it because they were very open about it," Bueerman said. "I had not detected anything from my conversations with anybody involved in this that anybody was trying to hide this." The public not knowing "may have been some misunderstanding" among the Baltimore police, he said—an assumption that its connection to CitiWatch meant the police "had complied with a public notification" already.

CitiWatch and aerial surveillance

Bueerman also characterized how the technology was pitched to him. His descriptions of what he was told tend to match statements made by the police, which suggests the Baltimore police were fairly consistent about the program whether they were talking about it privately before it was disclosed or publicly after it was disclosed.

In short, Bueerman explained, the surveillance technology cannot identify people or even cars because the resolution is not sufficient and is used "to sync it up with crime watch cameras from the ground." A person in the footage is represented by just one pixel, a "little blob that's moving from place to place." He supposed that "if you watched for hours and hours you could make an assumption about a pixel" but that just is not an efficient use of the program.

Over the phone, the Baltimore police's Smith described the program as a "a tool" and insisted "the only way [the program] has value" is in conjunction with the stationary street-level CitiWatch cameras that Baltimore police routinely use. The footage itself does not offer up specifics or identifying traits. Looking at it, one "can't say [if what you're seeing is] a blue car," he said, "and you can't say it's a black man." He noted that what attracted PSS to Baltimore and Baltimore to PSS's surveillance technology was the scale of Baltimore's CitiWatch program.

A presentation in the documents dated Aug. 12, 2016 and tied to the briefing with the State's Attorney Office explored "Legal and Privacy Issues." Citing the Supreme Court rulings, the presentation claimed that the program did not offer "a new or novel legal issue," had been "reviewed by multiple city attorneys," and followed the "same rules as other Airborne Law Enforcement" (mentioning Baltimore's use of the Foxtrot helicopter since 1970), and that there is "no expectation of privacy because this is in public space" and that it "always start[s] with a reported crime or ongoing investigation." And then in larger text the presentation reads, "Legal aspects they are the same," and that the aerial surveillance "is just using new larger cameras."

"The guinea pig"

The collection of emails and documents further enforces the idea that the program's main focus is violent crimes, especially shootings, but the technology was used for other investigations, too.

According to Bloomberg Businessweek, it identified dirt bikers involved in an accident with Det. Dawnyell Taylor and was used by analysts to "dig through archived images of traffic accidents." The Bloomberg Businessweek article also references June 25, 2016, two days after the Officer Caesar Goodson's "not guilty" verdict was announced, when there was concern about protesters downtown. In the recently released documents, Lt. Hood forwarded an email to McNutt from Downtown Partnership that warned of a public safety risk tied to protests the weekend of Artscape. McNutt's response was a simple "thanks." There was no follow-up encouraging McNutt to check locations tied to any of Artscape weekend's events, which would have included the #AFROMATION protest where 65 people were arrested.

The website for The Baltimore Community Support Program (BCSP)—the name McNutt gave to the organization using the PSS technology in Baltimore—doesn't only reference violent crimes. It says that BCSP "aim[s] to provide information to help reduce crime, limit dumping, reduce auto theft and a wide range of other community problems that make it difficult and often unpleasant to live, work and play in our community."

At a Judicial Committee hearing in Annapolis about police surveillance on Oct. 25, Smith said that there are 102 investigations tied to information gleaned in part from aerial surveillance, many of which are not tied to violent crime.

David Rocah, Senior Staff Attorney for the ACLU of Maryland, argues that the Baltimore police have offered many "shifting rationales" for the technology. "It seems like an inescapable fact that the rationales don't match what they say they actually found," he says.

In Baltimore, there is ongoing concern about the controversial Stingray operations that allow police to track cell phone activity, the recent revelation that social-media-monitoring company Geofeedia was employed to monitor protesters during the Baltimore Uprising, and the police use of facial recognition software to identify protesters with outstanding warrants, making the surveillance plane's secrecy seem especially nefarious. The ACLU has spoken out against Stingray, Geofeedia, and the nondisclosure of the aerial surveillance program. And then there is the damning Department of Justice report suggesting systemic problems and abuses of power by police.

Bueerman, sensitive to issues of privacy and transparency, believes the Baltimore Police Department's use of aerial surveillance is important.

"If you're trying to really keep people from dying, you should get credit for that," he said. Referring to the Baltimore police testing the program so that other departments might use it in the future, and all the criticism directed at Baltimore police, he said, "It's not fun to be the guinea pig."

Preventative vs. investigative

McNutt himself, as Bloomberg Businessweek wrote, feels that "part of the system's effectiveness...rests in its potential to deter criminal activity." In other words, McNutt believes that people who know they are being watched and recorded are less likely to commit a crime in the first place. Video showing McNutt as he presents the aerial program with an introduction by Jay Stanley, Senior Policy Analyst of the ACLU Speech, Privacy, and Technology Project, illustrates that McNutt is at least willing to engage and even spar with privacy advocates. However, he also went along with the Baltimore police decision to keep quiet—the police wanted to "conduct the test quickly and quietly," McNutt wrote at one point in the documents.

Bueerman disagreed with McNutt's preventative argument because "people who engage in violence [don't] actually care what anybody else thinks or what the police are doing," citing examples from his 30-plus years policing where gangs fired on one another near the police or with police in plain sight.

"This program doesn't have many preventative attributes except when you get serious habitual offenders off the street," Bueerman said.

It's only in conjunction with something like CitiWatch, Baltimore's street camera system, that the aerial surveillance is useful, Bueerman said. CitiWatch is known to the public and funded by the city, not paid for by anonymous Texas billionaires giving money to private non-profits. Because this surveillance was never disclosed, the public never participated in discussions, hearings, or vetting.

In other cities, the program attracted outrage and protest. In 2012, a nine-day trial run of the program took place in Compton, California. The trial wasn't disclosed until a year later, and when residents and community leaders found out, citizens and Compton's mayor criticized the program. When the police in Dayton presented the program to the public, many in the community objected and political leaders didn't pursue its implementation further.

It's not clear how the community would have reacted in Baltimore if people knew about it in advance, though significant protests this fall against the Port Covington TIF and last fall to Commissioner Davis' appointment as Commissioner, along with the city's substantial activist scene encouraging more police oversight, suggest many would have organized against the aerial surveillance or at least questioned its use.

Had this been proposed to the community ahead of time, "it would have been a ruckus and a real fight," said Assistant Professor at Morgan State University (and occasional CP contributor) Lawrence Brown. "But I think that the technology still might have been approved but with safeguards or equal access—like how citizens could use these tools to monitor and conduct surveillance on police," in police brutality cases, for example.

In a group statement, grassroots collective Baltimore Bloc said, "We would have opposed [the surveillance] on the basis of privacy and the idea that Baltimore city, particularly black people (the areas they would be most likely to use it in) need to be under constant surveillance and treated like criminals."

Although not a scientific poll, the Baltimore Business Journal asked online readers and found that 82 percent were comfortable with the aerial surveillance "as long as it's keeping people safe." A Baltimore Sun online poll that asked, "Should the Baltimore Police Department have disclosed plans to conduct aerial surveillance over the city before doing it, even if it put the program at risk?" shows 79 percent of people believe its secrecy was acceptable.

"I think people are generally reasonable," Bueerman said. "They want the police to be successful in the control of crime, especially violent crime."

Police spokesperson Smith explained that the program was not disclosed because police viewed it as an extension of CitiWatch. And because the program was operating on a "trial basis," it seemed premature to trumpet its existence. Smith added that the BPD also didn't want to "overpromise" what it could do and if it didn't live up to what was said about, it'd be seen as "negative in the city." He also pointed out that "when [criminals] know everything [the BPD is] doing," it hinders investigations.

The program, it seems, was not something police felt they had to disclose. Strategically, it was better not to disclose it anyway.

Fleet Week

About a week before Fleet Week and the Baltimore Running Festival, police held a press conference to discuss the aerial surveillance and plans to use it during that busy weekend.

"This isn't some nefarious intrusion on someone's privacy, it's anything but that," Commissioner Davis said. "Something being a secret versus something not yet being disclosed or vetted with the community, I think those are different things. I never intended to surprise anyone by this."

The program was also hailed as a way to fight terrorism. Davis and Smith referenced recent attacks in Paris, Boston, New York, and New Jersey and Davis noted that Baltimore is between Washington D.C. and New York City, "two targets for those who want to harm Americans."

This was a pivot away from the use of the surveillance for solving violent crimes. It is also arguably different from previous claims that the program's purpose is mostly investigative—it can't really prevent crimes such as a terrorist attack, it can only help locate those who committed the act of terrorism after the fact and gain intel into how the attack played out.

Over the phone, Smith clarified the terror angle, saying the announcement, pre-event, made it clear that Baltimore police will "use any means available" to stop terrorists.

The comments appear to counter earlier police claims that the aerial surveillance program is most effective when it is something criminals do not know about.

For now, the program's fate in Baltimore is unknown.

An Oct. 18 legislative oversight hearing held by the Public Safety Committee and tied to the use of the surveillance was canceled.

"Where everybody goes all of the time"

At the hearing in Annapolis on Oct. 25, prosecutors and the police along with public defenders and the ACLU's David Rocah addressed concerns about whether or not police surveillance technology—including aerial surveillance, Stingray, and Geofeedia—should be handled with new laws.

The Baltimore police's Smith once again emphasized that the aerial surveillance technology is only used in investigations and the resolution is low—common defenses for the program. He also stressed that the technology can help solve murders and, potentially, terrorist attacks.

Maryland lawmakers—in particular, Del. Charles Sydnor III and Del. Curt Anderson—reflected Rocah's talking points at the hearing, noting that technology will only become more hi-res and more affordable and therefore even more omnipresent. They also stressed the frustration that the program was not disclosed.

"The police department decided to go with it before vetting it with anybody else—is that fair to say?" Anderson asked Smith.

"We understand your point," Smith said sheepishly.

Both Smith and Drew Vetter, Chief of Staff to Commissioner Davis, countered privacy concerns by explaining that the cameras record "public space" where there is no presumption of privacy. They did not, however, fully account for the backyards or other private property that the surveillance records.

Additionally, the 300 or so hours of aerial surveillance footage has all been retained, a violation of the data retention protocol of 45 days, which is the existing policy for CitiWatch unless the footage is part of an investigation. The Baltimore police have said the aerial surveillance program is an extension of CitiWatch, but it does not seem to have to follow CitiWatch policies. Vetter defended this by saying, "because this was just a pilot program...all of the data has been retained."

"The retention policy is one of the critical questions with regard to any surveillance program," the ACLU's Jay Stanley wrote in "Baltimore Aerial Surveillance Program Retained Data Despite 45-Day Privacy Policy Limit," published the morning of the hearing, "because the longer data is retained, the greater the opportunities for misuse and for repurposing of the data into new uses that can harm people in new and expanded ways."

Over the phone a few days after the hearing, Rocah also reiterated the bigger points about the use of this technology he presented at the hearing: "[Wide Area Aerial Surveillance] is the technological equivalent of every time you walk out the door, there is a police officer following you everywhere you go, but because it's being done at 10,000 feet we can suddenly debate if it's a useful police tool or not. There's no denying, I think, that at some level this technology will be useful for solving some crimes that happen—the concerns that we've raised about the technology is not that they are useless. It would be 'useful' if the police didn't have to get a warrant. It would be 'useful' to the police if they didn't need reasonable suspicion."

But if "usefulness" is the only metric, "what the hell is the point of having a Fourth Amendment in the first place," Rocah asked. At the hearing and elsewhere, Baltimore police's Smith has presented a kind radical pragmatism as rationale: The technology can help solve violent crimes; the city needs it right now; the threat of terrorism is very real; and in its current iteration, the aerial surveillance isn't hi-res enough to identify individuals, so there's no problem.

"I don't think you have to believe—and I don't in fact believe—that the police are looking at this or using it right now because they're ill-intentioned and Kevin Davis has a secret plan to follow all the political activists in Baltimore or whatever, all of which are things that have actually happened by actual police officials before," Rocah said. "This is not paranoid ranting, this is actual historical fact. But I don't have to believe that Kevin Davis has some secret plan to be deeply concerned about this. It's based on what kind of power it gives to the government."

Rocah puts it like this: "Do you want Donald Trump to know where everybody goes all of the time?" And for the people "who think Hillary Clinton is the devil," Rocah added, the question is the same.

"I suspect the answer is no, Rocah stressed. "This was Mr. McNutt, who has got this new cool toy that he wants to market and he's going around the country looking for places where he can market it. And Baltimore is attractive both because we have a more extensive network of ground cameras which are necessary to increase utility of this particular technology," Rocah said. "And we have a fair amount of violent crime, so there's lots of public fear of crime that can be exploited to justify or sell using this technology."

Jim Bueerman said that whether or not the BPD uses the technology again, it isn't going away.

"I believe there are other agencies probably using persistent surveillance technologies in the country, not necessarily from PSS, but from other vendors," he says. "I don't know who they are or where they are, I may even be wrong, it's just my belief that the technology holds great promise towards solving crimes. And as police chiefs and sheriffs all over the country are struggling with violent crime, I think they're gonna look to this technology with some favor."

Additional reporting by Ja'Von Hill.

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