No more secret surveillance on Baltimore citizens

Op-ed: Secret surveillance on Baltimore citizens must end.

The Baltimore City Police Department, with direction from the FBI, has engaged in a practice of using machines that act as cell phone tower simulators to spy on its own citizens, in secret, and sometimes illegally. These cell site simulators are portable and allow the police to electronically connect with all cell phones in a given area — temporarily disconnecting them from their providers — in an attempt to locate a particular phone.

If you try to call 911 while the police are searching your cell phone (or your child's) you will not know why the phone is not working. Last year, Detective Emmanuel Cabreja testified in a hearing in the Circuit Court for Baltimore City that this technology was used approximately 4,300 times during the past eight years — far from a small infringement on the privacy of Baltimore's citizens.

When applying to a court for authority to use this technology, Department of Justice guidelines require law enforcement personnel to disclose to the judge the disruption of service that occurs for those affected by the simulator. This is not the practice in Baltimore. Instead, in 2011, city police, prosecutors and the FBI have all agreed to not disclose any information related to the use of cell site simulators — not even in court documents or proceedings. Only with written approval from the FBI can Baltimore City reveal certain information about this surveillance practice, according to the agreement, which was revealed in response to a Maryland Public Information Act request made by the state Office of the Public Defender last year.

Earlier this year, in a criminal case involving defendant Kerron Andrews who was represented by the Office of the Public Defender, a Baltimore Circuit Court judge and the Maryland Court of Special Appeals found that use of such technology to target and search Mr. Andrews' phone violated the 4th Amendment.

Judge Leahy, writing for the appellate court, addressed the nondisclosure agreement: "We observe that such an extensive prohibition on disclosure of information to the court — from special order and/or warrant application through appellate review — prevents the court from exercising its fundamental duties under the Constitution," he wrote, and is "inimical to the constitutional principles we revere."

What type of law enforcement practice could be legitimate when it hinders judges from following the law? And how many other Baltimoreans have been secretly surveilled by this technology?

Now, 16 months after the tragic death of Freddie Gray, police practices in Baltimore have been under particular scrutiny. On August 10th, the Department of Justice issued a comprehensive report criticizing aspects of the Baltimore Police Department including its use of excessive force, illegal street stops and discriminatory practices against African-Americans. Not a word, though, was mentioned about the secret and prevalent surveillance by the Baltimore police of its own citizens. Could it be because the FBI, an agency of the Department of Justice, is directing local law enforcement to continue this practice, instead of promoting transparency in policing?

As the Baltimore Sun reported last week, a number of civil rights groups filed a complaint with the Federal Communications Commission alleging violations of federal law in regard to the Baltimore police's widespread disruption of phone service for city residents. The complaint alleges that this practice is most prevalent in minority neighborhoods where the police most frequently use these cell site simulators. This administrative complaint will, I hope, shed further light on this secret practice by the police.

Government derives its "just powers from consent of the governed," as Thomas Jefferson wrote in the Declaration of Independence, and the citizens of Baltimore never consented to these practices. All of us suffer when citizens are secretly watched by their own government. This is particularly true in poor and minority neighborhoods, which are always disparately impacted by inappropriate police practices. For our communities, for our children, for our city, this widespread secret surveillance should cease immediately.

David Walsh-Little is the chief attorney of the Felony Trial Division of the Office of the Public Defender in Baltimore; his email is DWalsh-Little@opd.state.md.us.

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