Last week, EFF urged the full U.S. Court of Appeals for the Fourth Circuit to reconsider a split three-judge panel’s ruling that the Baltimore Police Department’s aerial surveillance of the city’s more than half a million residents is constitutional. In a friend-of-the-court brief—which was joined by the Brennan Center for Justice, Electronic Privacy Information Center, FreedomWorks, National Association of Criminal Defense Lawyers, and the Rutherford Institute—we argue that the panel decision is both wrong on the law and failed to appreciate the disproportionate burden of government surveillance borne by communities of color.
In May, the Baltimore Police Department launched its Aerial Investigation Research (AIR) Pilot Program. For six months, three surveillance aircrafts operated by a private company called Persistent Surveillance Systems flew over Baltimore—covering about 90 percent of the city—for 12 hours every day. The planes produced images that even at a resolution of “one pixel per person” allowed the police to track individual’s movements over multi-day periods, especially when combined with the police’s networks of more than 800 ground-based surveillance cameras and automated license plate readers.
Before the AIR program went into effect, the ACLU sued to block it on behalf of a grassroots organization called Leaders of a Beautiful Struggle that advocates for the interests of Black people in Baltimore and two prominent community activists. But the district court allowed the AIR program to go forward, and a Fourth Circuit panel affirmed that decision by a 2-1 vote. The Fourth Circuit’s Chief Judge Roger Gregory issued a powerful dissent that criticized the court for “invoke[ing] the tragedies imparted by gun violence in Baltimore to justify its grant of sweeping surveillance powers to the [Baltimore Police Department].”
Our brief urges the full Fourth Circuit to reconsider two crucial legal errors in the panel’s opinion. First, the panel failed to recognize that the Supreme Court’s recent decision in Carpenter applies to the AIR program. In Carpenter, the Court affirmed that the Fourth Amendment protects records of an individual’s location over time—precisely what the AIR program offers the police. And second, we showed why the panel’s discussion of the AIR program in the context of Supreme Court precedents involving searches for non-law enforcement objectives was severely misguided: the AIR program’s only purpose is to help the police investigate crimes.
We also put the AIR program in the context police surveillance's harm to communities of color. As we write in our brief:
Police experiment with, and eventually deploy, intrusive technologies like the AIR program in cities with large communities of color. Before Baltimore, PSS operated surveillance flights above Compton, California; Philadelphia, Pennsylvania; and Dayton, Ohio. The company also seeks to conduct surveillance of St. Louis, Missouri. Further, governments routinely deploy aerial surveillance technologies against individuals participating in racial justice movements, like those protesting against the police killings of George Floyd in Minneapolis, Michael Brown in Ferguson, and Freddie Gray in Baltimore.
We are hopeful that the court will take up the case again and withdraw the panel’s flawed opinion. In another case involving a warrantless search earlier this year, the full Fourth Circuit vacated a panel decision and issued a careful, well-reasoned decision. As Chief Judge Gregory wrote in that case: “If merely preventing crime was enough to pass constitutional muster, the authority of the Fourth Amendment would become moot.” The same is true here.