Report of secret aerial surveillance by Baltimore police prompts questions, outrage

A private company has been conducting secret aerial surveillance of Baltimore neighborhoods for the police.

The revelation that a private company has been conducting secret aerial surveillance on behalf of the Baltimore Police Department — collecting and storing footage from city neighborhoods in the process — caused confusion, concern and outrage Wednesday among elected officials and civil liberties advocates.

Some demanded an immediate stop to the program pending a full, public accounting of its capabilities and its use in the city to date, including in the prosecution of criminal defendants. Some called it "astounding" in its ability to intrude on individual privacy rights, and legally questionable in terms of constitutional law.

Others did not fault the program but said it should have been disclosed publicly before it began in January.

The program — in which Ohio-based Persistent Surveillance Systems has for months been testing sophisticated surveillance cameras aboard a small Cessna airplane flying high above the city — was first disclosed Tuesday in an article in Bloomberg Businessweek. The publication was given exclusive access to the company's testing.

The arrangement was kept secret in part because it never appeared before the city's spending board, paid for instead through private donations handled by the nonprofit Baltimore Community Foundation.

T.J. Smith, a police spokesman, confirmed Wednesday that the company had conducted 100 hours of surveillance in January and February and 200 hours of surveillance between June and this month. It will continue conducting surveillance for another several weeks before the Police Department evaluates its effectiveness and decides whether to continue the program, he said.

Smith acknowledged that the plane's cameras can record footage of 32 square miles of the city at any given moment and that its work had never been publicly disclosed. But he took issue with characterization of the program as "secret surveillance," suggesting there was no need for the department to make it public. He likened the program to an expansion of the city's existing CitiWatch system of street-level cameras.

"There was no conspiracy not to disclose it," he said. "We consistently go out and get ourselves involved in new technology, find different ways to bring that technology to Baltimore."

Others disagreed about the need for disclosure.

"I'm angry that I didn't know about it and we did it in secrecy, which is unacceptable," said City Councilman Brandon Scott. "We have to be transparent about it and we have to make sure that we're using it in the right way, especially given all of the things that have come out about the Police Department."

But Scott, who is vice chair of the council's Public Safety Committee, said he is interested in learning more about the program and how it could help address crime.

"I will say that one of the No. 1 complaints I get from citizens is that they want CCTV on their block," he said. "We have to get past the emotion, like I've done, and try to understand it. A lot of black people have asked for CCTV surveillance in their neighborhoods."

David Rocah, a staff attorney with the American Civil Liberties Union of Maryland, was sharply critical. "The fact that the city of Baltimore thought that they could adopt it in secret with no public input is beyond astounding," he said.

Rocah said the technology is "virtually equivalent to attaching a GPS tracker to each and every one of us every time we walk out of our house or office building." Any assurance that the resolution of the footage does not allow for individuals to be identified is misleading, he said.

"The fact that you can't use the camera to identify a face is utterly irrelevant to its intrusiveness, because they can match that pixelated dot to a person — whether identified or not — going into and out of particular buildings," he said. "Even without other technology, that simple fact can be used to identify us."

Then, Rocah said, the surveillance footage "can be matched with the more than 700 street-level surveillance cameras that are already installed all over the city of Baltimore, particularly in the poorest and most African-American neighborhoods in the city."

He said the police should "immediately discontinue use unless or until the City Council holds hearings on this, and I would hope that the City Council would prohibit the Police Department from employing this kind of mass surveillance technology."

In a statement, Police Commissioner Kevin Davis said the technology offers coverage similar to CitiWatch for more neighborhoods and residents and has helped police in making arrests in several non-fatal shootings. "Having alternative solutions to problems is something our community expects of its police department in the 21st century," he said.

Davis added that privacy concerns were not lost on him and promised a "robust and inclusive community conversation" if the department decides to recommend the technology's permanent use.

Police spokesman Smith and Ross McNutt, the founder of Persistent Surveillance, said the cameras transmit surveillance footage to analysts on the ground who can review it in real time or after the fact, moving backward and forward through time to identify and track individuals and vehicles in areas where crimes have occurred.

McNutt said that "when people actually see it, they will be happy that Baltimore is doing everything they can to reduce crime and support the community." He also said the resolution of the cameras is such that individuals are not recognizable, limiting privacy concerns, and that footage is reviewed only in connection with specific crimes.

Smith said evidence from the program had been presented to the Baltimore state's attorney's office to obtain a warrant at least once before, but declined to say whether other city officials were informed about the program.

Mayor Stephanie Rawlings-Blake became aware of it only "recently," her spokesman said, but he would not say when that was. She was "not briefed on the program at its inception," he said. But he quoted the mayor as calling the program an example of "cutting-edge technology aimed at making Baltimore safer."

Paul DeWolfe, the state's public defender, said he finds the surveillance program troubling.

"Widespread surveillance violates every citizen's right to privacy," he said. "The lack of disclosure about this practice and the video that has been captured further violates the rights of our clients."

State Del. Curt Anderson said he didn't have a problem with the police using a surveillance plane, but his colleague Del. Maggie McIntosh said the agency should never have implemented such a plan without getting public input.

"I never like it when any government agency moves ahead with a program without having public input," said McIntosh, like Anderson a Baltimore Democrat. "I have concerns about civil liberties and privacy. If the police are going to move ahead with this, we should stop and do the due diligence that should have been done before any contract was ever initiated."

State Sen. Catherine E. Pugh, the Democratic nominee for mayor, said she wanted to look into the program and learn why it wasn't disclosed to the public previously.

"I need to know more information," Pugh said. "We don't want anyone's rights violated. We don't want anything that harms the relationship between the police and community."

Alan Walden, the Republican nominee for mayor, said that the surveillance should have been disclosed but that he didn't view the use of such a plane as problematic.

"Our privacy has long since been discarded," Walden said. "It should have been disclosed before the fact, [but] I don't find it threatening in any way. It's another tool the Baltimore Police Department can use to do its job."

Joshua Harris, the Green Party nominee for mayor, called the situation "complicated."

"The public should have been alerted to this in advance," he said, adding, "Are we Google-mapping our way to solve crimes? Or are we invading people's individual privacy?"

Smith said the program was aimed at halting the horrendous pace of violence in Baltimore in the last year and a half. "We're going to stop at nothing," he said.

McNutt said his analysts had produced "investigative briefs" in 102 crimes, and were continuing to review footage around the times of violent crimes that occurred when the plane was in the air. Footage helped police identify Carl Cooper as the suspect in a shooting of a 90-year-old woman and her 82-year-old brother earlier this year, Smith and McNutt said.

Cooper's attorney, Margaret Mead, said the use of the technology in finding Cooper had not been disclosed to her by prosecutors.

"It troubles me a great deal," Mead said. "I understand that law enforcement has to do their job to locate people. But it's just as easy to start infringing on anyone else's privacy."

Anne McKenna, a visiting assistant professor of law at Penn State University and a legal consultant to the U.S. Department of Justice on aerial surveillance issues, said the new surveillance program raises all sorts of legal questions.

While there are U.S. Supreme Court decisions backing police use of certain aerial surveillance techniques, the nation's highest court has also restricted the ability of law enforcement to indiscriminately track individuals — an ability essentially given to Baltimore police through the surveillance footage now being collected.

"There's no question that the technology enables 24/7 tracking of someone from the minute they leave their house, as long as the plane can be kept in the air," she said. "Where is that data going and who has access to it and under what circumstances can it be accessed?"

A few years ago, McNutt had proposed using the technology in his company's hometown of Dayton, Ohio. Joel Pruce, an assistant professor in human rights studies at the University of Dayton, helped organize opposition to the effort — which was aired at public meetings.

"We met, and we basically asked for a meeting with the police and we had a series of discussions with police and the city's lawyers," Pruce said.

He and others were concerned about privacy intrusions, how the city would be using all the data it was collecting, and whether the surveillance techniques would disproportionately impact the black community, he said. The policies to govern the program that the city put forward were overly broad, he said, and officials declined to change the policies to address the public's concerns.

At the next City Council meeting, Pruce said, the issue came to a head as opponents of the program filled the chamber. The city manager withdrew the proposal.

Pruce said McNutt was very clear about his public defeat there.

"I'm just going to go to another city," Pruce remembered McNutt saying.

krector@baltsun.com

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