By Denise Lavoie
Legal Affairs Writer
RICHMOND, Va. — A divided federal appeals court on Thursday ruled that an aerial surveillance program used as a crime-fighting tool by the Baltimore Police Department was unconstitutional and said police must stop using any data obtained through the now-defunct program.
In its ruling, the Richmond-based 4th U.S. Circuit Court of Appeals said the use of planes equipped with wide-angle high-tech cameras to surveil the city amounted to a warrantless search that violated the Fourth Amendment.
“The AIR (Aerial Investigation Research) program records the movements of a city. With analysis, it can reveal where individuals come and go over an extended period. Because the AIR program enables police to deduce from the whole of individuals’ movements, we hold that accessing its data is a search, and its warrantless operation violates the Fourth Amendment,” Chief Judge Roger Gregory wrote for the majority in the 8-7 ruling.
The police department’s use of the aerial surveillance in a pilot program last year prompted an outcry among some privacy advocates. The six-month program tracked the movements of virtually all Baltimore residents during daylight hours.
The American Civil Liberties Union and the ACLU of Maryland sued in federal court on behalf of a group of Black activist leaders in Baltimore, arguing that the program jeopardized the privacy rights of residents. A judge rejected a request for an injunction to temporarily block the program.
In November, a three-judge panel of the 4th Circuit upheld the lower court ruling, finding that the program was carefully designed to “slow the recurrent increases in violent crime in Baltimore” and was “merely a tool used to track short-term movements in public, where the expectation of privacy is lessened.”
The ACLU appealed that ruling to the full court, which reversed the panel’s ruling Thursday.
The program ended in February. The city and the police department argued that the lawsuit was now moot. The 4th Circuit disagreed, saying that although police deleted most of the data it collected, it retained data related to specific investigations. The court’s ruling means the police department will be prohibited from accessing data collected through the program.
“The real crux of this case was the constitutional question — Is this allowable? — putting an entire city under permanent video surveillance e during all the daylight hours and tracking the movement of the entire population of the city and storing that information to create a virtual time machine, and the court said no,” said David Rocah, a senior staff attorney for the ACLU of Maryland.
In a dissenting opinion, Judge J. Harvie Wilkinson III said the majority opinion failed to balance “recognition of both public needs and privacy concerns” under the Fourth Amendment. He cited the number of people murdered in Baltimore — 335 in 2020 and 348 in 2019.
“One would think from reading the majority’s opinion that all is well in Baltimore,” Wilkinson wrote.
“These numbers make Baltimore one of the most dangerous cities in America. Yet somehow the majority sees oversurveillance as Baltimore’s big problem ... and it ventures on a crusade to eradicate it,” he added.
A spokesperson for the Baltimore Police Department declined to comment on the ruling and referred questions to the city’s Law Department, which did not immediately respond to a request for comment.