Baltimore, Maryland is no stranger to pervasive police surveillance. Through CitiWatch, the police monitor over 700 surveillance cameras mounted on street corners throughout the city in real-time. An operator, often a former police officer, scans a screen displaying numerous cameras, watching for what he perceives to be indicia of criminal activity. Then, he selects the camera and zooms in on the subjects remotely, recording evidence and dispatching police as necessary. The quality of the footage is impressive—it can zoom in close enough to read the license plate of a passing car. Through the CitiWatch Community Partnership, the City also crowdsources surveillance footage. It creates a voluntary registry of surveillance cameras that businesses and private citizens can elect to join, and thereby contribute to the police’s cache of evidence.

As expansive as CitiWatch is, the City is exploring more creative ways of mass surveillance—and it has some unlikely allies. In 2016, news broke that the City had collaborated with a private contractor to test out a new form of aerial surveillance: a plane that flies at low altitudes over the city, capturing footage of thirty square miles of footage in real-time. The aircraft sent the images to an office on the ground, where the footage could be viewed instantly, or saved to inform investigations that would develop in the coming days, or even weeks. The police can rewind the footage to track people or vehicles to and from the location of reported crimes. The police grounded the plane after the public voiced critical views of the program.

In March of 2018, the surveillance plane again garnered interest—but this time not from the City. Instead, the contractor behind the plane is recruiting local community activists for support. They’re pitching the plane as a technologically advanced way to track rogue police officers and record evidence of police misconduct. The aerial surveillance plane was likewise developed by a third party—an MIT grad—and the Baltimore trial-run was funded by Texas-based donor (a prior hedge fund owner). Depending upon how the City structures any hypothetical contract with the third-party contractor, the aerial surveillance could provide a more neutral tool since limited access to evidence often hinders investigation into police misconduct– that is, unless the police have unfettered access to access the footage.

The proposal has three main flaws the City or proponents have yet to address: (1) in the aggregate, the plane is more likely to capture footage of every-day citizens going about their daily lives than corrupt police officers, (2) there are likely less costly alternatives to addressing police corruption than flying a low-altitude surveillance plane over the city, and (3) the questionable constitutionality of the surveillance. Likely due to its short stint and the City’s failure to instate a permanent aerial surveillance program, the program is yet to be challenged in state or federal courts.

The general legal justification for mass surveillance is that when the police searches everyone equally and they are not focused on gathering evidence of “ordinary criminal wrongdoing”, the police do not need a warrant. However, opponents to the surveillance may argue that the surveillance itself is a seizure (if the government is the party recording), and accessing the footage and rewinding it to track an individual’s location is a search that should require probable cause.

The second prong of a Constitutional analysis would likely examine whether Americans have a reasonable expectation of privacy—after all, the plane captures images of the public going about their lives in open, public areas. This is likely to be a greater hurdle for a potential challenger. In his recently published Note, John Pavletic makes a convincing case that this type of persistent surveillance is different than spy planes of the past (deemed Constitutional in Dow Chemical Co. v. United States) because of its indefinite timespan. Pavletic analogizes the plane to the GPS monitoring in United States v. Jones, where some justices indicated that Americans have a reasonable expectation of privacy in their location, even when in public, when they are tracked unwittingly by GPS. Ultimately, the Court left the question unanswered. A case based on the Baltimore surveillance plane, if the City decides to reinstate it, may be the perfect way to get an answer.

–Natalie Pike

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