Baltimore’s Warrantless Aerial Snooping Found to Violate Constitution

Posted on July 3, 2021

According to a new post from the EFF, the Fourth Circuit Court of Appeals has ruled that the Baltimore Police Department’s long-term aerial surveillance program violated the US Constitution. The program, known as the Aerial Investigation Research (AIR) program, monitored nearly all of the city for 12 hours a day over a period of 6 months. Footage captured via this program was held for 45 days before deletion.

The ruling set down in Leaders of a Beautiful Struggle v. Baltimore Police Department essentially hinged on the fact that supposed limitations on the AIR program did not limit the impact of its surveillance sufficiently in practice to comply with the Fourth Amendment. Citing the landmark United States v. Carpenter case, the Fourth Circuit Court of Appeals rejected BPD’s claim that AIR data was anonymous, as citizens’ unique movement patterns could be used to differentiate any two individuals. Pairing this with other surveillance powers at BPD’s disposal, AIR’s aerial video capture could then attribute a real-world identity to any Baltimore resident spotted from the air.

The court exercised shrewd judgment in assessing the invasiveness of the program in the context of BPD’s other monitoring tools. Citizens are not adequately protected merely because one program in isolation cannot both identify and track citizens–if a government entity possesses two programs, one which differentiates citizens and another which identifies them, it yields the same effect as a single program which does both. This is the same reasoning used to argue the dangers of facial recognition: because law enforcement with facial recognition technology typically aggregates hundreds (if not thousands) of public and private camera feeds from across a jurisdiction, this empowers them to recognize individuals captured on video and then track them as they traverse the gaze of the various camera networks.

In the case of the AIR program, citizens were at risk of BPD deriving a number of invasive personal details from joining its footage with their other tools. Not only could citizens be tracked in real time, but their personal and business associations could be known, since identities could be correlated with those of others nearby. From here, information such as income (from workplaces visited for extended periods of time) and political affiliation (from demonstrations and campaign offices visited) could then be inferred.

BPD ceased operation of its AIR program as of earlier this year. Baltimore residents can now rest easy knowing it will not resume. More importantly, this ruling sets an invaluable precedent, and built off of the gains of the United States v. Carpenter ruling just as civil liberties advocates hoped. If more courts adopt the holistic evaluation of surveillance capability that the Fourth Circuit Court of Appeals did, there remains much potential for more such rulings in other jurisdictions.

You can read the full story from the EFF here.

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