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Surveillance plane is finished in Baltimore, but federal court still hears arguments over whether it’s constitutional

Aerial surveillance may be finished in Baltimore, but opponents asked a federal appellate court Monday to find that it is unconstitutional and help guide what happens to the data collected during its months in flight last year.

The two-plus-hour hearing, which took place in front of the entire 15-judge panel of the U.S. Fourth Circuit Court of Appeals, was split between some judges asking whether they even should weigh in, and others questioning the merits of the technology.

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Chief Judge Roger L. Gregory urged his fellow judges to take a position.

“This court does have the power to answer,” he said. “The place to do it is here. The time to do it is now. The court should decide and not kick the can.”

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The crime surveillance plane, paid for by Texas billionaires to test its effectiveness, first flew secretly over Baltimore in 2016, then was relaunched last year as part of a pilot program. The ACLU brought a lawsuit last spring on behalf of Leaders of a Beautiful Struggle and other citizens, seeking an injunction that would prevent the pilot program, but it was allowed to proceed by U.S. District Judge Richard D. Bennett.

After he was elected, Mayor Brandon Scott opposed the plane, and the Board of Estimates voted unanimously to sever its contract with the plane’s operator, Persistent Surveillance Systems. But other cities are exploring use of the technology, and data collected in Baltimore is still in play for more than 40 pending cases and 200 investigations.

“The [Founding Fathers] would be absolutely horrified by a program of mass surveillance from the sky that logged movements of Baltimoreans for 180 days,” ACLU attorney Brett Max Kaufman told the judges Monday.

Former City Solicitor Andre Davis, a former Fourth Circuit judge, argued the case for the city and called the aerial surveillance “innovative and controversial, to be sure. But just because it’s controversial doesn’t make it unconstitutional. Those have never been synonymous terms.”

Current Solicitor Jim Shea said Davis was “arguing the law, not the policy behind it.”

Several judges, often not identifying themselves as they spoke on the live-streamed, audio-only feed, expressed concern that the ACLU’s appellate arguments hadn’t been put to Bennett in the U.S. District Court. They said the arguments should have been raised previously, and they were uncomfortable ruling on the matter.

“I’ve never seen anything quite like this,” said one of the judges.

Judge J. Harvie Wilkinson III said the questions were moot because the plane was no longer flying.

The ACLU’s Kaufman countered that the program continues because the Baltimore Police Department continues to possess data that was collected.

Proponents of the technology have argued that it is not invasive, capturing just a pixel that is indistinguishable until paired with other surveillance or information. For example, a dot captured fleeing a crime scene is unidentifiable until a street-level surveillance camera reveals more information.

“This data is simply a tool in the toolbox,” Davis said.

Critics say it infringes on the right to privacy, functioning as a dragnet by recording everyone’s movements. Judge Barbara Milano Keenan questioned whether the technology went beyond others that had been previously ruled unconstitutional, because “here you have hundreds of thousands of people being captured and preserved for retrospective analysis.”

The retained data represents about 14% of the material amassed by the plane during the trial period. One judge questioned whether deleting data would violate rights of people charged with crimes that occurred during the plane’s flight, and which would possibly help rule out their involvement.

Wilkinson gave a long speech in which he said that “slamming down the gate” on the program would “leave communities like Baltimore without hope.”

“I just worry that we’re going to have cities throwing up their hands and saying, ‘There’s nothing we can do,’ and that’s so sad,” Wilkinson said.

Kaufman said the plaintiffs, citizens of Baltimore, appreciate efforts to reduce crime, but concluded that the aerial surveillance was “exactly the kind of too-permeating surveillance [U.S. Supreme Court Chief Justice John] Roberts warned about.”

Davis said the arguments were perhaps the longest in front of the full panel in its history. A ruling will be issued at a later date.

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