Issues to Watch

THE EYE IN THE SKY: BALTIMORE’S TOP SECRET SURVEILLANCE PROJECT THAT HAS BEEN WATCHING YOU ALL YEAR


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The Eye in the Sky: Baltimore’s Top Secret Surveillance Project That Has Been Watching You All Year

*Morgan Dilks

            George Orwell wrote his seminal novel 1984 about a world in which citizens were under constant surveillance. The ominous “Big Brother” was always watching, and citizens could be observed anytime, anywhere, including inside their own homes. What has been happening in Baltimore since the beginning of 2016 is not quite the Orwellian loss of privacy described in 1984; however, the citizens of Baltimore have been under surveillance regularly and without their knowledge. News of this top secret surveillance project broke on August 23, 2016. Monte Reel, Secret Cameras Record Baltimore’s Every Move from Above, Bloomberg Businessweek (Aug. 23, 2016), https://www.bloomberg.com/features/2016-baltimore-secret-surveillance/. This project raises an important question: Is it constitutional to conduct constant, unwarranted, undisclosed surveillance on an entire city?

Background

Persistent Surveillance Systems is a company that, according to its website, “develops highly capable, yet affordable, wide area surveillance systems for city, state, national, and international markets.” About PSS, Persistent Surveillance Systems, http://www.pss-1.com/#!about-pss/c20r9 (last visited Sept. 16, 2016). What this means, in practice, is that an airplane flies at an altitude that allows cameras mounted to the bottom of the plane to provide constant surveillance of an area as large as thirty square miles. This information is then transmitted in real time to analysts on the ground who can track the movements of people or vehicles with the goal of solving reported crimes. Reel, supra. Baltimore is not the first city to test this technology. This has been used in cities such as Los Angeles, California; Dayton, Ohio; and other cities internationally (including cities in Mexico, Central America and Africa). Id.

Reception

The public reception to this type of surveillance has been mixed. In Los Angeles, a long term contract was not signed with Persistent Surveillance Systems because the quality of the images did not meet the requirements of the police department. Id. The public was not even informed about the surveillance until roughly one year later, at which point protests ensued. Id.

In Dayton, Ohio, the idea was put to a public hearing. While the police department was interested in employing this surveillance tactic, the public felt differently. With the exception of some city employees, few people spoke highly of the idea. The minority population expressed fears that the technology would be used to target them, presumably at a disproportionate rate. Id.

In favor of this type of surveillance, Ciudad Juarez, Mexico, had a reasonable degree of success during a 2009 surge of violence between the Sinaloa and Juarez drug cartels. Within hours of setting up the operation, Persistent Surveillance Systems witnessed two murders and was able to track the murderers back to a cartel “kill squad” house, leading to dozens of arrests, confessions and incarcerations. Id.

Legal Question

The question that arises from the use of these cameras is whether it is constitutional to conduct constant, unwarranted, undisclosed surveillance on an entire city. To answer this question, case law that relates to the Fourth Amendment must be examined. In United States v. Knotts, a “beeper” was placed in chemicals sold to the defendant, Knotts, in order to track him back to where the chemicals were believed to be used in the manufacture of illegal drugs. 460 U.S. 276 (1983). In that case, it was determined that tracking Mr. Knotts in this manner was not a “search” in the context of the Fourth Amendment. The Court stated that, “A person travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” Id. at 281. In Knotts, tracking the defendant without his knowledge was not deemed to be a violation of the Fourth Amendment.

A similar ruling was reached in United States v. Marquez. A GPS tracking device was placed on a suspected drug dealer’s vehicle in order to track his movements and catch him in the commission of a crime. The court held that, “[W]hen police have reasonable suspicion that a particular vehicle is transporting drugs, a warrant is not required when, while the vehicle is parked in a public place, they install a non-invasive GPS tracking device on it for a reasonable period of time.” 605 F.3d 604, 610 (8th Cir. 2010).

Conversely, in United States v. Maynard, a warrantless GPS tracking was performed for an extended period of time, where defendant Jones was tracked for twenty-eight days without a warrant. 615 F.3d 544, 558 (D.C. Cir. 2010). The court held that tracking Jones’s movements for twenty-four hours a day (over the course of twenty-eight days) was excessive. Distinguishing this case from Knotts, the court stated, “Society recognizes Jones’s expectation of privacy in his movements over the course of a month as reasonable, and the use of the GPS device to monitor those movements defeated that reasonable expectation.” Id. at 563.

In addition to these considerations, there is another piece to this constitutionality puzzle: the federal statute governing surveillance. In order to perform electronic surveillance, 18 U.S.C. § 2518(c) requires that “normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous.” 18 U.S.C. § 2518 (2012).

Issue to Watch

The current state of this issue leads to many questions. How long can a suspect be tracked without a warrant while still remaining in the realm of having a reasonable expectation of privacy? In Knotts, the defendant was tracked for one trip, point to point. In Maynard, the defendant was tracked constantly for twenty-eight days. So, how long can a suspect be tracked using electronic surveillance without a warrant? And does “constant surveillance,” even without the specific intention to track just one person, constitute the performance of unwarranted electronic surveillance? Can undisclosed overhead surveillance be compared to the disclosed “blue light cameras” in high crime areas in Baltimore? With 18 U.S.C. § 2518(c) requiring that “normal investigative procedures have been tried and have failed,” then what normal procedures have been tried? Considering the low profile, covert nature of the type of surveillance discussed in this article, have any other methods been tried? Has anyone signed off on this?

It will be intriguing to see how the courts examine this issue. Will they compare it to Knotts? There could be an argument that the only time that an individual is tracked will be when it has been determined that a crime has been committed, and that only that individual’s movements will be tracked at the time that the act was committed. On the other hand, the argument could be made that there is constant tracking of a person, whether suspected of a crime or not, by the nature of the constant surveillance provided by Persistent Surveillance Systems, which could be comparable to the longer term surveillance conducted in Maynard.

It will be interesting to see how things unfold in the upcoming months. The covert nature of this program has kept almost all data out of the spotlight, including the specific length of time this has been going on, the number of arrests and convictions that have occurred as a result, and from where the financing for this project originated. Look for all of these questions to be answered in the coming months now that this practice has been brought to light.

*Morgan Dilks is a second-year law student at the University of Baltimore School of Law where he is a staff editor for Law Review, as well as a Law Scholar for Professor Bessler’s Civil Procedure class.  In the summer of 2016 he interned for the Honorable Robert N. McDonald on the Maryland Court of Appeals and worked on litigation matters at the Law Offices of Sloane L. Fish.

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