For six months this year, a spy plane flew over Baltimore for hours every day conducting aerial surveillance of everything that happened in 90 percent of the city—an area that encompasses 32 square miles.
The Baltimore Police Department told the public and a federal appeals court that the surveillance images would only be stored for 45 days, that the planes would only be used for limited tracking of individuals to and from known crime scenes, and that the Aerial Investigation Research (AIR) program couldn’t be used to gather identifying information like license plate numbers.
The Baltimore Police Department was lying, according to an audit from independent evaluators hired by the city.
The ACLU and local activists are currently suing the BPD in an attempt to prevent the AIR program, which was a six-month pilot, from starting up again in Baltimore or anywhere else. In its court filings in that case, BPD made statements that “bear an insufficient resemblance to the reality of how AIR operates,” the auditors from New York University School of Law’s Policing Project wrote in an amicus brief to the court.
The Policing Project team also wrote that, prior to oral arguments before the federal appeals court in September, it pointed out the false statements in the department’s case filings to BPD’s lawyers “believing [BPD] counsel would correct the record, but counsel did not.”
A three-judge panel of the U.S. Court of Appeals for the Fourth Circuit eventually ruled in BPD’s favor in the case, but the ACLU has appealed that decision, which was based in large part on some of the false claims the department made about the AIR program.
“This technology crosses the Rubicon in terms of totalizing surveillance, and it supercharges the surveillance abilities that already exist,” Ashley Gorski, a senior staff attorney with the ACLU’s National Security Project, told Motherboard. “The data itself is incredibly revealing, and there are serious concerns about how it can be used now and how it can be used in the future.”
The Policing Project report “confirms exactly what we’ve been saying all along about this mass surveillance program … [and] underscores the radical disconnect between the BPD’s public representations about the program and how its spy planes actually work,” added Brett Max Kaufman, another ACLU senior staff attorney working on the case.
The AIR program is a partnership between the BPD and Ohio-based company Persistent Surveillance Systems (PSS), which owns the spy planes and employs the analysts that examine the footage when BPD makes a request. The $3.7 million initiative was paid for entirely by a nonprofit founded by John Arnold, a hedge fund billionaire who used to work for Enron.
The pilot program, which began in April, was the second time the city’s police department has attempted to spy on its citizens from the sky. When it first trialed PSS’s services in 2016, the department never informed the public.
This time, police announced the existence of the AIR program and advertised the safeguards they were implementing in an attempt to assuage residents’ fears that their civil liberties were being violated on a daily basis. The department also said it would allow four independent evaluators, including the Policing Project team, to review the AIR program.
The Policing Project reviewers completed their study in November. Among their key findings:
Baltimore police were using AIR imagery to track individuals over multiple days and to watch houses belonging to relatives of persons of interest. In one case, BPD tracked a person across three days and to 11 different locations, according to the Policing Project audit. In another, police watched the home of a suspect’s mother for two days. The extended surveillance contradicts BPD’s public claims about how it uses AIR and the memorandum of understanding it signed with PSS, which states that images from the surveillance planes are to be used to track suspects “to and from crime scenes.”
BPD also misrepresented how long surveillance images are stored. The memorandum of understanding says that PSS must delete images not related to a specific case after 45 days. In reality, the auditors found, PSS is retaining “a substantial majority of the aerial imagery generated during the AIR pilot.”
The department also stated on its website that AIR imagery could not be used to determine identifiable characteristics about suspects, such as their ethnicity, the clothing they were wearing, or their license plate number. But the surveillance plane imagery is inextricably, and intentionally, linked to BPD’s other surveillance technology, the auditors found. PSS analysts have access to the city’s network of CCTV cameras and Automated License Plate Readers and use them in conjunction with AIR images to greatly increase BPD’s ability to identify people and track them over long periods of time.
In a filing responding to the Policing Project’s amicus brief, BPD’s lawyers claimed they had not misled the court or the public. The department argued that it doesn’t track individuals for multiple days because the AIR planes didn’t fly at night, so there were hours-long gaps before the aerial portion of the surveillance picked up again in the morning.
BPD also claimed it wasn’t violating the promised 45 day retention period for images not related to a crime.
PSS uses software that melds images from the multiple cameras on its planes into a single, cohesive image of the city, but the software isn’t able to separate those images once they’re combined. As a result, any day that BPD requested PSS’s assistance investigating a crime, the company indefinitely retained surveillance footage of the entire city for the entire time it captured footage, including images of the thousands of other people who had nothing to do with the crime in question. BPD told the court that it didn’t understand how that practice violated the 45 day retention policy.
The revelations in the new audit could substantially affect the court’s decision to hear the ACLU’s appeal and, if it does hear that appeal, how it will rule. The Policing Project evaluators themselves urged the court to overturn its previous decision, thereby blocking the AIR program from restarting.
“Baltimore has experienced equally profound difficulties in the way it has been policed. Striking the balance correctly is of the utmost importance—not only for Baltimore but for the course of Fourth Amendment law—and that only can be done on an accurate record,” they wrote in their amicus brief.