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Baltimore City Paper

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 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.

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

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The emails begin when McNutt reaches out to Lt. Hood asking if the police would like to try an aerial surveillance program his company developed, previously used by the police in Dayton, Ohio. McNutt later explains to Lt. Hood that he has funds—via donations from the Texas-based The Arnold Foundation—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 brings up issues of constitutionality, transparency, and community concerns.

The surveillance is nixed in 2014 but McNutt reaches out in the summer of 2015—post Baltimore Uprising, amid a homicide spike—and the police department's interest increases. In September, McNutt informs Lt. Hood that the Arnold Foundation has agreed to provide the funds and from there, the program's approved quickly. On Oct. 16, 2015, then-interim Commissioner Kevin Davis gives the technology the go-head. Later, it would come out that Davis took the initiative without informing either 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 after additional funding.

Documents show that the police take nearly all of McNutt's advice, assisting in money-moving logistics, and following his lead in every way except when it comes to revealing the program to the community and to the city's political leaders. It isn'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 offers up a Supreme Court case that sets a precedent for this kind of recording and continues 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 tells the police he had talked to reporter Monte Reel and claims that the story won't run until the BPD made the program public and approves the story for publication.

On Aug. 22, McNutt once again pushes the police to tell the public about the program, notes that this was always the plan, advises police to do it swiftly to prevent speculation and misinfo, and asks Lt. Hood to forward his email saying all of that to T.J. Smith, Director of Media Relations for Baltimore police.

The next day, Aug. 23, McNutt informs Lt. Hood that another publication, Wired, has also found out about the aerial surveillance. A few hours later, he sends a link to the Bloomberg Businessweek story which has gone live. McNutt explains that the publication ran the story because Wired had found out and were going to run something themselves. "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."

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On Friday when City Paper reached to McNutt, he declined to comment, referring questions to T.J. Smith. "The Commissioner mentioned several times that we were planning to discuss publicly," Smith writes in 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 does not respond when McNutt mentions transparency. If conversation outside of email pertaining to issues of transparency occurred, Smith says, he was "not familiar with any other conversations that took place." He adds 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 forwards an email to McNutt via Sgt. William MacDonald which contains a link to a Reddit thread discussing FBI plane sightings among a few online amateurs who monitor air traffic patterns; they're discussing wide-area surveillance. "Just an FYI about Wide Area Surveillance. It is making its rounds on the internet," Sgt. MacDonald writes to Lt. Hood, who forwards 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 sends 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?

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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 with the State's Attorney's Office on Aug. 12, 2016 about the program. 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, 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 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 this week, Mark Guidera Vice President of Communications & Marketing at the GBC provides 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 first met Bueerman a few years earlier through Chief Richard Biehl of the Dayton police.

Reached on Friday, Jim Bueerman, the President of the Police Foundation describes his organization as "the pass through," for the money "because the funder need[ed] a 501 C3," or a tax-exempt nonprofit. He stresses 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 says, 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."

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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 importantly, Bueerman says, "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 says. "I had not detected anything from my conversations with anybody involved in this that anybody was trying to hide this."

He says that the public not knowing "may have been some misunderstanding" among the Baltimore police—an assumption that its connection to CitiWatch meant the police "had complied with a public notification" already.

CitiWatch and Aerial Surveillance

Bueerman also characterizes 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 says 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 for a person, a "little blob that's moving from place to place." He supposes that "if you watched for hours and hours you could make an assumption about a pixel" but that's just not a good or efficient use of it.

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Over the phone, the Baltimore police's Smith describes the program as a "a tool" and insists "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 says, "and you can't say it's a black man." He notes 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 tied to the briefing with the State's Attorney Office explores "Legal and Privacy Issues." It claims that the program: does not offer "a new or novel legal issue" and cites Supreme Court rulings and says it has been "reviewed by multiple city attorneys"; follows the "same rules as other Airborne Law Enforcement" (and mentions Baltimore's use of the Foxtrot helicopter since 1970) and says 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 it reads, "Legal aspects they are the same," and that the aerial surveillance "is just using new larger cameras."

"It's Not Fun to Be 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 analysts used it to "dig through archived images of traffic accidents." The Bloomberg Businessweek article also makes reference to June 25, 2016, two days after the Officer Edward Nero's "not guilty" verdict was announced) when there was concern about protesters downtown. In the recently released documents, emails between McNutt and Lt. Hood show Lt. Hood forwarding an email to McNutt from the Baltimore City Department of Public Works that warned of a public safety risk tied to protests the weekend of Artscape. McNutt's response to this forwarded email is a simple, "thanks." There's 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.

On the website for The Baltimore Community Support Program (BCSP), which is the name McNutt gave to the organization using the PSS technology in Baltimore, it 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."

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In Baltimore, there is ongoing concern about the controversial Stingray operations, 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 which suggested 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 says. 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 says,  "it's not fun to be the guinea pig."

Preventative vs. Investigative

McNutt himself, as Bloomberg Businessweek wrote, believes "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 to the ACLU in 2014, with Senior Policy Analyst of the ACLU Speech, Privacy, and Technology Project Jay Stanley introducing him, 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 it quiet—as he wrote at one point in the recent documents, the police wanted to "conduct the test quickly and quietly."

Bueerman disagrees 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." He cites examples from his 30-plus years policing where gangs fired on one another near the police or with police in plain sight.

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

It's only in conjunction with something like CitiWatch, Baltimore's street camera system, that the aerial surveillance is useful, Bueerman says. In contrast to the aerial surveillance program, 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 has 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, the program was criticized by citizens and Compton's mayor. 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 to the Port Covington TIF and last fall to Commissioner Davis' approval as Commissioner, along with the city's substantial activist scene encouraging more police oversight, make it safe to assume many would have organized against the aerial surveillance.

Had this been proposed to the community ahead of time, "it would have been a ruckus and a real fight," Assistant Professor at Morgan State University (and occasional CP contributor) Lawrence Brown says. "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.

Grassroots collective Baltimore Bloc, in a group statement, says, "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."

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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" and 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 saying it was acceptable to keep it secret.

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

Police spokesperson Smith elaborated about why the program was not disclosed, explaining that it was because police viewed it as an extension of CitiWatch. And because it 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 and strategically, it was better not to disclose it anyway.

Fleet Week

A couple days 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.

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"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 offered up 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.

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Bueerman says that whether or not the BPD use 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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