A Texas-based hedge fund operator has funded more than 300 hours of surveillance flights over Baltimore by a private company. The Baltimore Police Department neglected to inform the public or most elected officials, and insists this is routine.
"This is effectively a mobile Citiwatch camera," BPD Spokesman T.J. Smith told a gaggle of reporters at a hastily-convened press conference at police headquarters this afternoon. "An additional tool that works with our 700 Citiwatch cameras to increase our chances of catching a suspect."
The piece—which was quickly picked up by The Sun and other news organizations—called the program "secret" and raised civil liberties questions. The police department says the donor, who gave the money through the Baltimore Community Foundation, is anonymous. The Bloomberg story identifies him as "John Arnold, a former Enron trader whose hedge fund, Centaurus Advisors, made billions before he retired in 2012," and his wife, Laura.
Persistent Surveillance Systems is the company operating the small plane. It flies a Cessna at 8,000 feet, equipped with an array of high-resolution cameras which together can see about 35 square miles at a time—about half the city. When a 911 call comes in about a shooting or other serious crime, the plane flies to or focuses in on the area. It can then rewind the video footage to see what or who arrived at a scene just before the event, and then track vehicles and people from the area.
The "plane goes where the calls for service go," Smith said, adding that it helped capture Carl Cooper, the alleged shooter in the February case in which a 90-year-old and 82-year-old brother and sister were shot in Walbrook.
"He is off the streets and was off the streets in a much quicker manner" than he would have been without the technology, Smith said.
Cooper was captured on March 4 in North Carolina.
Smith said other large cities are also testing the technology. But Ross McNutt, the founder and president of Persistent Surveillance Systems, said his company is not working with any other cities currently.
The system will help with natural disasters like floods, sinkholes, and missing persons cases, according to Smith. He said the plane helps track illegal dirt bikers without the need to chase them in the street, which is dangerous.
"The bottom line is, we aren't surveilling or tracking anyone," Smith said. "We are responding to calls for service."
The ACLU and other civil liberties groups have raised concerns. David Rocah, a staff attorney with the American Civil Liberties Union of Maryland, told The Sun that Persistent Surveillance's 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."
He said it was "beyond astounding" that the program was implemented without public input.
Common Cause of Maryland called the program a "deeply troubling practice by Baltimore Police that raises questions of transparency and accountability within the Department."
At the press conference, Smith was asked repeatedly why the department did not inform the broader public about the system when it was first deployed. "We don't have announcements when we add cameras" to the Citiwatch program, he said.
The system was active for 100 hours in January and February, and then 200 more hours between May and now. Smith and McNutt said there is some time left on the contract.
The footage is reviewed by people McNutt hires. He said they work cheaper than sworn police officers.
McNutt said his team prepared 102 "investigation briefs" for detectives. He did not say how many of these led to arrests; Smith said there were "a couple of instances."
During the time the aircraft was flying the police received 18,500 calls for service, of which 560 were top priority.
The department released a two-page legal analysis titled "Memorandum of Law in Support of the Constitutionality of Wide Airborne Motion Imagery." The document cited two cases from the 1980s in which pot growers were busted by low-altitude overflights in which police officers could identify the plants with their naked eyes.
But the rulings turned in part on how common aircraft overflights were, and did not contemplate high-resolution camera arrays. In each case, the plaintiff was a targeted individual and the surveillance was short-term.
A longer-term surveillance with better technology could be problematic.
In 2012, in U.S. v. Jones, the Supreme Court decided that police could not slap a GPS tracker on a suspect's car and track its movement without a warrant. Because police had "trespassed" on the defendant's property, the conviction was overturned. The court did not take up the question of whether Jones has an "expectation of privacy" while driving on a public road, but the ruling did say that 28 straight days of constant tracking was over the top, constitutionally.
The government argued that Jones should have assumed his movements would be monitored because GPS is nearly ubiquitous.
And that is the way the Fourth Amendment works in practice. Because "privacy" is a vague concept determined in large part by social norms, the court has ruled that those norms—the "reasonable expectations" of ordinary people—control whether or not a given surveillance is legal. It's a moving target, and it hasn't moved since the 1980s, when a pair of court cases in Florida and California—Florida v. Riley and California v. Ciraolo, the main cases cited in the memo—decided that if cops in planes can see the pot farm in your back yard, they can get you.
In another case, Dow Chemical v. the United States, the court did take up the issue of technology. But in that case the camera was deemed to be an ordinary one usually used for mapping.
Since part of the case law turns on the ubiquity of the technology (i.e. saying that "anyone in a plane could see" only makes sense if aircraft are widely available), the rapid advance of technology will tend to erode the right to privacy over time. At least, it will if the law doesn't change.
In the Jones case, Justice Samuel Alito suggested that "[i]n circumstances involving dramatic technological change, the best solution to privacy concerns may be legislative. A legislative body is well situated to gauge changing public attitudes, to draw detailed lines, and to balance privacy and public safety in a comprehensive way."