Originally published in VICE on September 13, 2016.
Somehow, the policing nightmare in Baltimore keeps getting worse.
In July, charges were dropped against all the officers responsible for 25-year-old Freddie Gray’s death, a massive defeat for police accountability in a city crying out for it. Just weeks later, the feds released a scathing report finding Baltimore cops engaged in systematic racism and callousness towards victims of sexual assault. And perhaps most spectacular of all, a magazine story late last month revealed cops have been running a secret aerial surveillance program in city skies.
All of which is to say that just as cynical and frustrated residents began to plot the long road to reform in a city wracked by gun violence and shady policing, experts and reform advocates now find themselves at a loss to explain how one city is wrapped up in just about every kind of police excess there is.
The aerial surveillance program consists chiefly of flying planes over 8,000 feet in the air and gathering video footage across a roughly 30 square mile radius, as Bloomberg Businessweek reported. The program was funded secretly by Texas billionaires, Laura and John Arnold, who say they are looking to support new tools that can help police departments more effectively solve crime. The planes have flown about 300 hours in Baltimore since January.
For its part, the police department denies that officers have done anything wrong, or that the planes even amount to a form of surveillance. TJ Smith, media relations chief for the Baltimore Police Department, told VICE the aerial program “doesn’t infringe on privacy rights” because it captures images available in public spaces. “We do not feel like citizen’s rights were violated because they weren’t,” he said. “This phase is a trial run to see if this is technology would be useful in the city of Baltimore. We are constantly searching for creative ways to solve crime in a city that saw 344 murders in 2015.”
An evaluation of the program’s effectiveness, also funded by the Arnolds, is expected to come out later this month.
Meanwhile, last week, in the final days available for public comment on the feds’ scathing appraisal of Baltimore cops—the NAACP Legal Defense and Education Fund, the University of Maryland Francis King Carey School of Law, and Maryland Congressman Elijah Cummings hosted a town hall for residents to share their thoughts on police reform. Michael Wood, a former city cop turned reform activist, attended, and while he expected racism to be at the top of the list, the surveillance bombshell was clearly overwhelming residents, too.
“I haven’t spoken to a person who isn’t furious,” Wood told VICE of revelations about the program.
Remarkably, the mayor and the city council were both unaware of the surveillance experiment’s very existence, namely because it was funded secretly through a local foundation. The foundation’s leadership have claimed they did not realize what the Arnolds’ money was going towards, and in a statement, Laura Gamble, board chair, and Thomas Wilcox, the foundation’s president and CEO, said they have “learned valuable lessons from this experience.”
Baltimore public defenders were also kept in the dark, and argue that police and prosecutors’ failure to disclose—in court documents—when video footage came from aerial surveillance is a serious problem. Defenders have called for a suspension of the program.
Meanwhile, state and local politicians are looking at legislative responses to the city’s latest police scandal. At the next session, Curt Anderson, the head of Baltimore’s delegation to the Maryland House of Delegates, is considering introducing surveillance regulations that would apply to all Maryland police departments. He told the Baltimore Sun that lawmakers need to figure out “how and where [footage] would be used, where you keep the information, how much it would cost to store that information, and how much it would cost someone if they made a request for that information.” On the local level, the ACLU of Maryland plans to craft legislation for someone on the Baltimore City Council to sponsor, which would limit the scope of police surveillance and/or increase the level of civilian oversight.
Elizabeth Joh, a law professor at the University of California Davis who specializes in policing and technology, told me that while police secrecy is nothing new, the kind of dragnet surveillance that Baltimore has engaged in—where officers aren’t necessarily looking for one particular person, or conducting a specific investigation—raises serious political issues. “You need to balance some legitimate police needs with the idea that police may just have too much information on innocent people,” Joh said. “And that’s a real struggle for people in a democracy to figure out. Police can go as far as they want, but what do communities want?”
Baltimore police officials maintain the aerial surveillance program is just an extension of CitiWatch, its street-level closed circuit television system. But according to Anne McKenna, a visiting law professor at Penn State University and a national expert on technology and surveillance, the “breadth and scope” of Baltimore’s aerial surveillance program raises new questions that are nowhere near settled in case law. And when you take the department’s reported aggregation of social media posts, overlay it with aerial surveillance and closed circuit TV footage, “Well, you’ve really created Big Brother,” McKenna said.
But Tara Huffman, director of Criminal and Juvenile Justice at the Open Society Institute-Baltimore, actually sees the city’s police commissioner, Kevin Davis, who took over not long after Gray’s death, as someone who genuinely understands the importance of reform. Which makes the surveillance revelations all the more surprising. “It seemed completely contradictory to the actions we’ve seen Commissioner Davis take,” Huffman told VICE.
Baltimore, of course, is continuing to struggle with gun violence—the Sun reports there have been 215 homicides already this year, and the police’s clearance rate for solving murder cases has tended to be dreadfully low. But the connection between aerial oversight and catching violent criminals isn’t always so clean-cut.
“I think what is alarming—and I think it’s fair to say uniquely alarming about what we’ve seen going on in Baltimore—is there’s been a massive investment of resources to monitor speech and protest,” said Lee Rowland, the Senior Staff Attorney with the ACLU’s Speech, Privacy and Technology Project. “Exercising your First Amendment right is not probable cause, it’s not reason for suspicion. That the police would be directing their investigative resources to fly over protests or spend their days on Facebook looking for speech when there’s been no complaint or evidence of a crime, that is a use of power we should call out as wrong.”
Challenges remain for Baltimore residents, as the deadline for a consent decree with the Department of Justice draws near and opposition from the police union looms large. But most glaring of all to some observers is the fact that the police department continues to argue that tracking social media and conducting aerial surveillance shouldn’t even bother people.
“The community’s reaction to the surveillance helps to underscore just how fractured the relationship is, just how deep the distrust, the resentment, the suspicions run,” said Huffman. “The community is in a position where transparency is the order of the day.”