Baltimore's aerial surveillance program goes way beyond CitiWatch, experts say

Baltimore Police: It's just an expansion of CitiWatch. Experts: No it's not.

Confronted with questions about a secret aerial surveillance program used to record footage of broad swaths of the city, the Baltimore Police Department tried to allay concerns by characterizing it as a simple expansion of the existing network of street-level CitiWatch cameras.

"This, effectively, is a mobile CitiWatch camera," said police spokesman T.J. Smith.

Experts in privacy law and in the use of aerial surveillance by law enforcement say that characterization is way off base.

"They're trying to make people calm by saying, 'Don't worry, this is just an expansion of our CCTV program.' It's not," said Anne McKenna, a visiting assistant professor of law at Penn State University and a legal consultant to the U.S. Department of Justice on aerial surveillance issues. "This is not a camera pole that sits in one location and films people walking back and forth."

The new program involves a privately owned company strapping a bank of cameras into a small Cessna airplane and capturing hundreds of hours of footage — more than 32 square miles at a time — from about 8,000 feet above Baltimore. That footage is fed to analysts on the ground who can go back in time to track individuals and vehicles as they moved across the city.

It is a vastly different technology than CitiWatch, said Jake Laperruque, a privacy fellow at The Constitution Project, a Washington-based think tank. It is "more invasive and is in greater need of checks and limits," he said.

"You need a lot of [street-level] cameras to get to a point where you can actually track a person's movements throughout a city. And even then it can be difficult at a ground-level view because there are obstructions," Laperruque said. "There's a fundamental difference that makes this a whole new type of surveillance, and it should be treated as such."

Both McKenna and Laperruque said that given the obvious differences between the program and the CitiWatch system, the secrecy surrounding it is particularly problematic.

City Council members and state lawmakers weren't even aware of the program until it was disclosed in an article published Tuesday, and there appears to have been no legislative oversight.

Without such oversight, and careful considerations of such things as who can access the data and when, it's unclear whether the program is even operating within the law, McKenna said.

Unlike the city's system of CCTV cameras in public, the new camera program films everything below it — in public and private outdoor spaces — and for hours on end, allowing tracking.

"It's not even like they are putting it in your backyard," she said. "They have a camera on the top of your head and they can follow you every time you leave a building."

McKenna said the U.S. Supreme Court has already said that tracking someone's vehicle for long periods of time without a warrant is problematic — and this program gives police the capability to go way beyond that.

Laperruque said the new system could allow police to track individuals coming and going from political meetings, protests, abortion clinics and religious institutions whether they are in high-crime areas or not, and without the sort of in-your-face presence that would alert a community to abuse.

"If you placed a CCTV camera directly outside the front entrance to a mosque, that would probably raise a huge number of eyebrows, with people saying, 'Why are you doing that? That's sketchy,'" Laperruque said.

But the new program has the potential to put every location in the city under surveillance, he said, and implementing it surreptitiously meant "depriving the public of the ability to ensure there are appropriate checks to protect people's privacy rights."

Ohio-based Persistent Surveillance Systems is the company that operates the plane and cameras and employs the analysts reviewing the footage. Founder Ross McNutt stressed that the images cannot identify individuals. He also said the footage is used only to investigate crimes.

But civil liberties advocates have pointed out that police officials or others with access to the data could identify individuals by watching where they travel to and from, and there has been nothing provided to the public outlining how such uses are prevented.

McKenna said such a capability could produce data ripe for abuse without oversight.

"Imagine there is somebody who has a vendetta, and they can access the data. I'm not saying this is happening, but imagine the misuse potential for that data," she said.

McKenna also said it is alarming that the police department is treating the new program as a simple expansion of the CCTV program — and restricting it under policies that apply to the CCTV cameras — because the safeguards against misuse of the CCTV program aren't sufficient to safeguard against misuse of the new program.

"If they're telling us, 'We're treating this just like it's part of our CCTV program,' that means they don't need a warrant to look at that data," McKenna said. "And if that's how they're treating it, that means they aren't taking the same precaution as so many other police departments that are aware of the power of aerial street surveillance."

Smith and Mayor Stephanie Rawlings-Blake said the trial program is also an example of Baltimore leading the way toward national best practices in the area of aerial surveillance by law enforcement. "We don't always have to seek out best practices; Baltimore can also create them," the mayor said in a statement.

But McKenna said Baltimore officials appear to have dived headfirst without public oversight into a field ripe with constitutional and legal pitfalls — one many other municipalities and agencies she has advised have approached with extreme caution in order to ensure they aren't violating the rights of local residents.

Those that have adopted new-age surveillance programs, such as unmanned vehicles like drones, have done so "under a really tightly controlled program where there is full disclosure, where the public is on notice when the area surveillance vehicle is in operation, and where the data that is collected is under tight control in terms of how it is collected and who can access it," McKenna said.

She said "none of that is present" in the Baltimore program — at least as far as the public and elected officials know.

Jim Bueermann, president of the Police Foundation — which facilitated one of the grants that is funding the surveillance program — said his organization will be reviewing the program's effectiveness and the concerns surrounding its implementation.

Bueermann said it is always difficult for a police department "at the front end of innovation in policing" to do everything correctly the first time, but it can help pave the way for other agencies to get it right.

He said he believes the Baltimore Police Department's "intentions are good," and hopes his organization's review will answer questions, find solutions to specific concerns, and help the community heal.

"Using a system that allows you to rewind video, see a vehicle fleeing from the scene of a shooting — a drive-by, let's say — and follow it to a place in theory saves taxpayer money, might apprehend the person responsible, and ultimately, because we know violent criminals commit more than one crime, might save someone's life," Bueermann said.

But he said there must be "issues of transparency, accountability, constitutionality — all of those things — wrapped up into that. And I can't tell you whether all of that is going on in Baltimore or not."

krector@baltsun.com

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