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State lawmakers, ACLU consider legislation to regulate police surveillance

Lawmakers, ACLU considering legislation to regulate police surveillance in Maryland.

State lawmakers and civil liberties advocates are considering legislation that would regulate police surveillance programs — and require public disclosure — after the Baltimore Police Department ran a secret aerial surveillance program over the city for months.

The head of the city's delegation to the Maryland House of Delegates said the public should know where such technology is used, how the information is kept and the costs involved. The lawmaker, Del. Curt Anderson, is looking at proposing regulations in the next General Assembly session that all Maryland police departments would have to follow to do any kind of surveillance.

In Baltimore, the American Civil Liberties Union of Maryland plans to submit legislation to the City Council that would prevent the Police Department from acquiring new surveillance technology without public debate.

"These tools should not be acquired and deployed in secret," said David Rocah, senior staff attorney for the ACLU of Maryland. "We are not a foreign enemy; this is not a battlefield. Secrecy simply has no place whatsoever in this entire discussion."

The Baltimore Police Department has acknowledged conducting about 300 hours of aerial surveillance on broad swaths of the city — about 32 square miles at a time — using a bank of cameras aboard a privately funded, privately operated Cessna airplane flying thousands of feet above the city. The program launched in January and remained secret until last month.

Beyond the Police Department, few knew about the program, including Mayor Stephanie Rawlings-Blake, the city's top prosecutor and the state public defender's office, state and federal lawmakers, and police union officials.

Police Commissioner Kevin Davis knew about the program from its inception, but police officials have dismissed concerns about the lack of disclosure, suggesting that the surveillance was little more than an expansion of the city's street-level CitiWatch camera system.

Officials say the program was operating in a trial capacity, and Davis has promised a "robust and inclusive community conversation" if the department decides to continue the program.

The plane is not conducting surveillance in Baltimore now but might be tested again during the Maryland Fleet Week and Air Show and the Baltimore Running Festival in mid-October, said T.J. Smith, a police spokesman.

Smith said police are "always reviewing legislation that could impact the Police Department," but he said he could not comment on potential legislation.

The Baltimore program, operated by Ohio-based Persistent Surveillance Systems, was funded by Houston philanthropists John and Laura Arnold through the Baltimore Community Foundation. Because of that arrangement, the program did not require approval from the city's Board of Estimates and did not undergo the scrutiny typically afforded to city contracts and expenditures.

The images Persistent Surveillance captures cannot be used to identify individuals — the resolution is too low — but the system enables the tracking of individuals or vehicles to and from crime scenes, police said. Street-level police work takes over from there.

The footage has been used by police to track down individuals accused in serious crimes, including the shooting of two elderly siblings in February, Baltimore police said. But police did not refer to the surveillance in charging documents in court.

Maryland Public Defender Paul B. DeWolfe's office has raised concerns about the failure of police and prosecutors to disclose that information. And Baltimore State's Attorney Marilyn J. Mosby's office has called on the Police Department to outline when the plane was conducting surveillance and the criminal cases in which the technology has been used, noting a legal obligation to disclose certain information to defense attorneys.

While the ACLU and other critics raised concerns that the program could violate Fourth Amendment rights against unreasonable searches and seizures, others took issue with the lack of public disclosure while supporting an improved ability of police to fight crime.

Anderson, a Democrat, said the Police Department is under pressure to find new ways to reduce crime, especially as violent crime is up over last year, when city homicides hit a historic high, and that most residents "don't have a problem with this."

"The problem they do have is, you ought to run this by a few folks before you unilaterally set it into motion," Anderson said of the aerial surveillance.

Anderson said he is researching how a bill could be crafted. The legislation could "impact anything where the police have cameras that view the public, whether it's the body cameras, the CCTV cameras, an eye in the sky or dash cams," Anderson said. "It would be a comprehensive look at all the tools police have to surveil.

"It's more than dotting i's and crossing t's. It's ferreting out how and where it would be used, where you keep the information, how much it would cost to store that information, and how much it would cost someone if they made a request for that information," Anderson said. "Right now, it would be up to the local jurisdiction."

He said the statewide regulations could be promulgated by the Maryland Police and Correctional Training Commissions. The bill also could set new, modern standards for the disclosure of police surveillance footage as evidence in criminal cases and in response to requests under the Maryland Public Information Act, Anderson said.

A spokeswoman for the Maryland Police and Correctional Training Commissions, which is in the midst of a reorganization, said officials there could not comment on proposals for legislation.

Del. Samuel "Sandy" I. Rosenberg, a Baltimore Democrat who has supported legislation to regulate police surveillance programs in the past, said, "The key is having a serious discussion about whether there is a way for this technology to be used consistent with the Fourth Amendment, constitutional protections and the benefits of solving crimes."

Rosenberg said the legislature and the courts should work to ensure that the law is being followed.

"We balance those interests as a matter of policy, and they balance those interests as a matter of law and legal rules," he said.

Rocah said city legislation could mirror efforts by the ACLU in cities such as Oakland, Calif.; Grand Rapids, Mich.; and Seattle to limit surveillance or provide citizen oversight of surveillance operations. The organization would need to find a member of the City Council, which is planning hearings on the issue, to sponsor the legislation.

"There's a difference between me seeing you do something at a particular time and the government having a permanent record of every time you walk out of your house," Rocah said. "It's a plane now, but I'm sure very soon it will be a drone. A drone can fly in the air for 24 hours at a time."

Ross McNutt, a former Air Force officer who founded Persistent Surveillance Systems, has touted the technology — developed for military use — as a tool for local governments dealing with an array of issues, from large events to traffic congestion, natural disasters, weather and fighting crime.

Its rollout in Baltimore is not the first time the technology has attracted controversy or attention from local politicians.

Persistent Surveillance has operated in several cities across the country since it was founded in 2007. But the company has not been able to find a police department willing to use its services long-term. Each time its operations have become public, political leaders have balked at the idea of keeping tabs on their constituents from the air.

Still, McNutt said he remains confident that he will find a police chief and a mayor willing to take a chance on his technology.

"What I see is a great tool for law enforcement that has good protections for privacy that's not being used in Baltimore while 344 people are being murdered," McNutt said, referring to the record number of homicides on a per-capita basis in the city in 2015. "We have been looking for a while for a city with strong political leadership that wants to do something about crime.

"We believe we've done a lot of work on the privacy policy issues. At this point it's not the technology, it's more the political will to address the issue of crime."

McNutt declined to discuss the Baltimore operation and referred questions to the Police Department.

In the past, McNutt has publicized his company and welcomed discussions about its merits and the concerns that such surveillance raises. In 2014, the Internet Policy Forum posted a video to YouTube in which McNutt briefed privacy activists and explained how authorities used images taken from his plane to piece together information about a killing in Juarez, Mexico. He also took questions from members of the audience, who raised concerns about how the technology could be abused.

"To throw out a crazy hypothetical: You can probably figure out where a lot of the Muslims in your community live," said one woman in the audience. "You can put little red dots around them."

McNutt replied that he understood the concerns and said the company had been working on developing privacy policies and working with communities that are considering using his technology.

Police in Dayton, Ohio, near where McNutt's company is based, were excited about the surveillance plane's potential, said Lt. Matthew Dickey, an official in the Dayton police chief's office. After a brief test, police sought to sign a contract with Persistent Surveillance but faced stiff opposition from local residents. The deal fell through.

"I think it effectively killed it," Dickey said. "I don't think there's anybody that's going to bring it back up."

A program run by the Los Angeles County Sheriff's Department in 2012 did not come to light until two years later. The department did not respond to questions about its operations with Persistent Surveillance.

Rep. Elijah E. Cummings, who met with Davis this week to discuss the surveillance program, said he encouraged the police commissioner to be as forthcoming as possible about the program and its capabilities — and soon.

The Baltimore Democrat said he told Davis that he "has to make the very best case he can make, not only to me but to others," as to the benefits of the program if he wants it to continue. Cummings noted that the public is "extremely sensitive" about department overreach and civil rights violations after a recent U.S. Justice Department investigation found a pattern of unconstitutional practices by Baltimore police.

While he said he sees the potential benefits to law enforcement of the surveillance technology, he believes a conversation about potential legislation to ensure civil rights are protected is "a good discussion to have."

"The Police Department needs to show all of these groups exactly how all of this works," Cummings said.

Smith, the police spokesman, said Davis "looks forward to showing and discussing the technology more in the coming days."

Baltimore Sun reporter Luke Broadwater contributed to this article.

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