As the Baltimore Police Department considers whether to continue using a private aerial surveillance program to fight crime, the man who owns the technology is looking to court other clients in private industry.
Ross McNutt, president of Persistent Surveillance Systems, said he is considering marketing his company's ability to collect aerial footage of the city to auto insurance companies, to help them determine which drivers are at fault in accidents and whether claims are valid.
Beyond shootings and other violent crime, McNutt's cameras have captured between 60 and 70 car accidents per day in recent months, he said. At any given time, the system can record what's happening over 32 square miles.
"You're looking at people who caused accidents, who are not a very sympathetic group," McNutt said in an interview. "It's not people who accidentally rear-end somebody, it's people who have run three or four red lights and T-boned somebody and put them in the hospital."
The prospect of the footage being sold, however, is raising significant concerns among the same civil liberties advocates, surveillance law experts and public defenders already wary of the Police Department's use of the system. They say private clients would be bound by fewer constitutional restrictions — including those against unreasonable searches and seizures — than the Police Department.
"How does the public feel about persistent surveillance when it's available to the highest bidder?" said Anne McKenna, a visiting assistant professor of law at Pennsylvania State University and a legal consultant to the U.S. Department of Justice on aerial surveillance issues. "Now we really have potential for misuse, because what if your political opponent wants to know where you are at all times?"
McNutt's company conducted more than 300 hours of surveillance between January and July as part of a pilot program on behalf of the Police Department. Mayor Stephanie Rawlings-Blake, prosecutors, public defenders and other elected officials criticized police for not informing them of the program.
Police officials said Friday that the plane will be back in the air this coming week for Maryland Fleet Week and Air Show and the Baltimore Running Festival, and that they will assess whether to continue the program afterward.
McNutt stressed that he hasn't signed any deals to track collisions. But as the use of his technology by the Police Department has come under intense scrutiny, he said he's planning ahead.
"We will survive no matter what," he said this week, in the midst of preparations for another insurance-related job: flying up and down the East Coast to conduct surveys before and after Hurricane Matthew blows through. He said his insurance clients can use that information to pinpoint locations where storm damage is extensive and large volumes of claims are likely.
McNutt said his surveillance company already does $3 million to $4 million in private business a year. Regardless of whether Police Commissioner Kevin Davis decides to adopt McNutt's technology on a permanent basis, the surveillance might continue.
The company policy states that surveillance "will be conducted in a professional, ethical and legal manner." It also says that the technology will not be used "to invade the privacy of individuals, to look into private areas or areas where the reasonable expectation of privacy exists."
Along with Baltimore police officials, McNutt has stressed that the cameras he uses only produce low-resolution images, capable of providing police with the ability to track individuals and motorists through the city, but not to identify those individuals. He has also said he is eager to cooperate with any public official — the police, public defenders or prosecutors.
Critics say McNutt's plan to pitch his technology to commercial clients raises red flags.
Even if McNutt sticks to his policy, she said, others could come along using his business model and offer footage with no such privacy protections in place.
"If this guy gets to do it, why can't everybody just get a plane and fly over top and sell the data?" she said.
David Rocah, a staff attorney with the American Civil Liberties Union of Maryland, said private use of mass surveillance footage would be "a manifestation of a much larger problem, of private actors, typically corporate actors, accumulating vast amounts of data about us and then monetizing that data."
Phone and internet companies do it regularly, he said, but those companies typically collect data "through some transaction that we are involved in with them," such as signing a usage contract with a mobile carrier or logging into Google to use its search engine.
With McNutt's proposal, "you can't opt out in any way," he said. "We should have a right not to have all of our movements accumulated, digitized and monetized."
The Federal Aviation Administration requires pilots flying over Baltimore to be at least 1,000 feet above the ground and to be in communication with air traffic control because of the city's proximity to BWI Thurgood Marshall Airport.
"The FAA does not regulate the length of time that an aircraft can overfly an area or the purpose of a flight," the agency said in a statement.
Dan Kobrin, one of several assistant public defenders who recently met with McNutt about the police surveillance program in Baltimore, said that "there is no law in the Maryland code, there is nothing in the city ordinances" that would prevent McNutt's commercial expansion.
If the Police Department "walks away and says, 'We're not going to do it,'" Kobrin said, "that's his incentive to go outside of the criminal justice system and say, 'OK, Geico, do you want to pay me?'"
Maryland Insurance Commissioner Al Redmer Jr. said he is not aware of any existing insurance laws or regulations that would prevent an insurance carrier from working with McNutt.
"Insurance carriers are going to do what they can do to try to get it right," he said, "and with the advent of new ideas and new technologies, we see all kinds of interesting things."
He said his agency monitors the insurance market, but it's usually legislators who lead efforts to change the law.
"If legislators learn of something that insurance carriers are doing, and someone doesn't like it, then we all pack our bags, go to Annapolis, make our best case and try to get the legislature to outlaw whatever it is we happen to see," he said.
Insurance industry observers said they are not familiar with such surveillance systems being used by insurers.
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Michael Barry, a spokesman at the industry-funded Insurance Information Institute, said surveillance technology is being used in the market — with drones.
"Many home insurers today are using drones to assess damage in hard-to-reach places, and they are even using it for day-to-day work — for instance, if there is damage on a roof," Barry said.
Kobrin envisioned a scenario in which a public defender would have a duty to review private footage to see if a criminal client could be cleared of a crime.
McNutt or his commercial competitor could respond to the public defender's footage request by saying, "Yes, for $200,000, you can have access to it," Kobrin said. "I wonder how the General Assembly would like it if we were forced to put out that kind of money just to do our job."