Appeals Court Says Baltimore PD's Aerial Surveillance Program Doesn't Violate The Constitution
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The Baltimore PD can still use its flying spies, says the Fourth Circuit Court of Appeals. The aerial surveillance program -- first "introduced" on accident in 2016 -- allows the PD to track the movement of people across the entire city, thanks to high-powered cameras mounted on airplanes. The surveillance system (created by Persistent Surveillance Systems) can capture 32-square miles. People and vehicles are reduced to pixels despite the power of the 192-million-megapixel cameras, but combining this footage with street-level surveillance allows the PD to deanonymize moving pixels observed near crime scenes.The entire system was paid for by a private donor, allowing the PD to sidestep its transparency obligations to the public. After the initial run ended, the PD resurrected it -- this time following the proper processes for introducing new surveillance systems to the city.Earlier this year, a federal court rejected requests for an injunction, stating that the observations of moving pixels didn't amount to a Constitutional violation. Even though these pixels could be identified using ground-based surveillance, the court didn't see anything in the system that amounted to persistent, intrusive surveillance with Fourth Amendment implications.The case went to the Fourth Circuit Court of Appeals. During oral arguments, the judges appeared mostly sympathetic to the city's arguments, claiming it was almost impossible to violate the rights of unidentified pixels whose movements have been observed on public streets.The Appeals Court has delivered its decision [PDF]. And, as expected, it has declared the program to be Constitutional. The opinion opens with something suggesting the judges feel the ends justify the means.Baltimore sadly has experienced a serious recent rise in homicides. For each of the past five years, Baltimore has been victimized by at least three hundred murders. In 2017, Baltimore experienced a higher absolute number of murders than New York City, a city with fourteen times Baltimore’s population. It also presents this fact as though it were something that justifies persistent surveillance, rather than pointing out the shortcomings of the Baltimore PD's investigators.Moreover, the Baltimore Police Department (BPD) has struggled to respond effectively to this increase in murders. In 2019, it cleared just 32.1% of homicide investigations, its lowest rate in several decades. So, because murders continue to happen and the Baltimore PD seems mostly incapable of solving murders, the system is justified. As the court sees it, because it doesn't flagrantly violate rights, any rights violations it might enable are acceptable.It is a carefully limited program of aerial observations of public movements presented as dots, and it is important at the outset to say all the things the program does not do. It does not search a person’s home, car, personal information or effects. It does not photograph a person’s features. There are other limitations to the program. Planes can't fly in bad weather and the high-powered cameras are useless after sundown. But the planes still fly daily, if possible. The court's assumption this system will help Baltimore get a handle on its murder problem seems suspect. Data obtained through records requests show the system's failed to produce results. 700 hours of flights occurred but only led to a single arrest.The court also claims the system can't be used to track people because [reads opinion] it can only be used to track people's movements.There will be no live tracking of individuals. Analysts can only use AIR’s photographs to look at past movements. So, tracking someone's past movements is apparently more Constitutional than tracking their current movements. Weird take, especially given the Supreme Court's Carpenter decision, which found that tracking people's past movements via cell site location info is unconstitutional without a warrant.The Appeals Court says this is all very legal and very Constitutional.In light of these precedents, we cannot hold that AIR [Aerial Investigation Research] violates a reasonable expectation of privacy. AIR is merely a tool used to track short-term movements in public, where the expectation of privacy is lessened. Such an activity is lawful in light of Knotts and Jones. And the specific tool which the BPD will use for the surveillance, aerial photography, has been sanctioned by the Supreme Court in several cases. And this is how the Fourth Circuit says Carpenter doesn't apply:Whereas CSLI could be used to reliably track an individual’s movement from day to day, AIR can only be used to track someone’s outdoor movements for twelve hours at most. If there's anything positive about this decision, it's that the court has confined its decision solely to this particular surveillance program, which should prevent more intrusive programs from sneaking in under the Fourth Circuit's ruling.Our opinion should not be overread. Although we conclude that AIR does not invade a reasonable expectation of privacy, our decision should not be interpreted as endorsing all forms of aerial surveillance. We only address the AIR program, which has built-in limitations designed to minimize invasions of individual privacy. We do not address a surveillance program that includes, for example, twenty-four hour surveillance of indoor and outdoor spaces using photographs that allow analysts to immediately identify the specific people being photographed. The dissenting opinion says the other two judges have it wrong. There are Fourth Amendment implications and they're being ignored by the majority.These conclusions rest on a fundamentally warped understanding of the facts, accepting the Government’s promises about the AIR program and ignoring the plaintiffs’ contrary evidence. The AIR program does, indeed, amount to long-term surveillance that compiles “a detailed and comprehensive record” of a person’s past movements. See Carpenter, 138 S. Ct. at 2215–19. Thus, Carpenter is not only relevant to this case. It controls the outcome. The dissent goes on to point out that the arguments the majority uses to justify the surveillance under its "there's no Constitutional violation here" conclusion.Applying that broader perspective to this case, the limitations of the AIR program that the majority emphasizes do little to distinguish Carpenter and Jones. Indeed, it is hard to reconcile the majority’s portrayal of the AIR program’s capabilities with its insistence that the program is justified because it helps BPD police crime. That the AIR program’s surveillance planes will fly only during the daylight hours and capture individuals as solitary pixels does not mean that AIR program data cannot be used to track specific individuals over time.Presumably, the vast majority of Baltimore’s residents start and end most days in the same place: their homes. Who resides at a given address is often public information. Likewise, many people begin each day at home, then travel during the daytime based on a daily routine, and then return home again. In just one possible application, law enforcement could use AIR data to track a person’s movements from a crime scene to, eventually, a residential location where the person remains. Police could then look through time and track the movements of people from that residence. Police could use any number of context clues to distinguish individuals and deduce identity. After all, that is the very purpose of the program. But it's the majority whose opinion counts. The Baltimore PD can continue to track residents' movements for up to twelve hours a day, day after day (weather permitting). Perhaps the Supreme Court will take up the inevitable appeal and apply its own Carpenter decision a little more rationally.
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posted at: 9:44pm on 16-Nov-2020
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Trump Campaign's Ridiculous SLAPP Suit Against CNN Tossed Out Easily
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Back in March you may remember that we wrote about yet another ridiculous SLAPP suit filed by the Donald Trump campaign (using lawyer Charles Harder, who, you may also remember, was the lawyer in the lawsuit against us as well). Harder's track record in these performative cases continues to be... rather lacking. Last week, you may have missed that amidst all the other legal disputes Trump's campaign was losing, this particular case was also dismissed -- though, not quite as easily as I had expected. And it does leave it open for an amended complaint to be filed, though I still can't see how it passes muster.If you don't recall, this particular lawsuit was about an opinion piece on CNN by Larry Noble, a former general counsel for the Federal Election Commission, who laid out a detailed analysis of the Mueller report about Russian interference in the 2016 election, and how it likely violated Federal Elections laws. The article expressed Noble's opinions, based on clearly disclosed facts. And that, by definition, should not be defamatory. District court judge Michael L. Brown -- who was appointed to the bench by Trump -- rejects the complaint, but not because it was opinion and therefore not defamatory.The case focuses on a single statement in Noble's CNN article:The Trumpcampaign assessed the potential risks and benefits of again seekingRussia's help in 2020 and has decided to leave that option on the table While many other statements in the article include language making it clear that these are Noble's opinion, that one sentence doesn't have that specific language, and that opens it up to being seen as a statement of fact, provable true or false.A reasonable reader could readilyunderstand the first part as alleging a weighing of the risks and benefits.It has a precise meaning. Defendants argue the second part is couchedin figurative, imprecise language, and thus is not actionable under NewYork [l]aw. (Id. at 16.) The Court disagrees. While [s]tatements'couched in loose, figurative or hyperbolic language in chargedcircumstances' are more likely to be deemed opinions, it is not aninflexible rule, and the court should weigh the totality of thecircumstances..... Thus, while lefton the table is figurative language, it is also precise language. Areasonable reader could readily understand it to mean available forconsideration. The Statement satisfies the first factor of the test. However, what kills the lawsuit is the failure of Harder and the Trump Campaign to make much of an effort at all to get over the NYT v. Sullivan standard of defamation of a public figure. In order to meet that standard, they need to show that CNN/Noble knew that what was written was false, or had "reckless disregard" for the truth (which doesn't just mean they were sloppy -- it has to mean some actual action to avoid the truth). It seems that Harder barely even bothered to try to get over this "actual malice" bar, and the judge is not impressed:Most of the allegations in the complaint regarding actual malice areconclusory. Plaintiff, for example, alleges in a purely conclusory mannerthat Defendants clearly had a malicious motive and knowinglydisregarded all . . . information when it published the DefamatoryArticle.... The complaint's allegation that Defendants wereaware at the time of publication that the Statement was false due to[e]xtensive public information is also conclusory and without factualsupport.... Allegations such as these amount to little more than[t]hreadbare recitals of the elements of a cause of action, supported bymere conclusory statements, which are insufficient to support a cause ofaction....Plaintiff's only other allegation of actual malice is that Mr. Noblehad a record of malice and bias against the President as evidenced by a tweet and previous articles he had written.... In the tweet,Mr. Noble wrote: Trump cheats and lies, and when caught, lies againand claims the right to make the rules. He claims defeats as victories,takes credit for anyone's success and blames his failures on others . . . .(Id.) The Supreme Court has emphasized that the actual malicestandard is not satisfied merely through a showing of ill will or 'malice'in the ordinary sense of the term.... The tweet might show Mr.Noble's ill will towards the President, but it fails to plead actual malicein the constitutional sensethat is, it does not show Mr. Noble made theStatement with knowledge that it was false or with reckless disregard ofwhether it was false. And thus the case is dismissed, though they can try to amend the complaint to plead actual malice. That seems quite unlikely to get anywhere.In the meantime, this should be another reminder of why we need better state anti-SLAPP laws (that can apply in federal court) and a full federal anti-SLAPP law.
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posted at: 9:44pm on 16-Nov-2020
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