USA: Continuous aerial surveillance is unconstitutional

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Permanent surveillance of innocent citizens of an entire city is unconstitutional in the United States. That was decided by an expanded bench of judges in the country with 8 to 7 votes. A judicial search warrant would be necessary, which can only be obtained if there is a concrete suspicion. The reason for the decision are surveillance programs in which airplanes circle the whole day and take high-resolution photos of an entire city or region every second.

Various US cities have been monitored from the air for years. Persistent Surveillance Systems (PSS) specializes in this “Aerial Investigation Research”. With the support of subsidies, it has developed a relatively inexpensive monitoring system. A dozen commercially available cameras are mounted on an airplane and produce images with a resolution of several hundred megapixels.

About 83 square kilometers are scanned every second. The recordings are immediately transmitted to the ground and saved. PSS employees evaluate the recording for the police. With the help of the images, individual persons can be followed for hours without noticing – even later and of course retrospectively for the time before they became victims, witnesses or perpetrators of a crime, or had contact with such a person.

Among other things, the Baltimore police commissioned such permanent surveillance back in 2016. After a public outcry, the program was discontinued. But in April 2020, Baltimore’s police again booked PSS surveillance flights from sunrise to sunset. A patron paid the bill in the millions. The data was merged with information from surveillance cameras on the ground, license plate cameras, and microphones distributed throughout the city.

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Two citizens and a black think tank from the city refused to put up with it and sued the police for an injunction in a US federal court. The program violates the Fourth Amendment to the US Constitution, which generally requires judicial approvals for searches. This is to protect against arbitrary interference by the authorities in the security and privacy of citizens.

In addition, the plaintiffs applied for an injunction to stop the flights immediately. The Federal Supreme Court rejected this application, however, because the surveillance was likely to be constitutional. This was confirmed by the Federal Court of Appeals with 2: 1 votes. But the plaintiffs did not give up. They requested a new hearing before an extended bench of judges of the same court (“en banc hearing”). This is only granted very rarely, but in this case it is.

The surveillance flights over Baltimore did little. They were discontinued at the end of October 2020 due to the low yield for police investigations. In early February 2021, Baltimore police announced that they had deleted most of the recordings. Only around one million images are saved for ongoing investigations.

With this move, the police tried to end the legal proceedings: Since the surveillance has ceased, the lawsuit is no longer valid. The court did not agree with this because the police wanted to use some photos for investigations or criminal proceedings.

It is the access to the images – not the creation of them – that constitutes a search. And for a search, a judicial search warrant is required. Baltimore’s investigators are no longer allowed to use the images that are still saved. This emerges from the court decision published on Thursday.

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Eight of the 15 judges supported this result. Seven judges let the police continue. The reasons differ in detail, so that there are a total of six reasons: two for the presiding judge for civil rights, another for civil rights, and three for supervision.

The main reasoning, which eight judges have followed, is based primarily on the precedent Carpenter v. United States. In it the US Supreme Court had recognized that cell phone location data may only be evaluated with a judicial search warrant. Since then, US authorities have had to have a specific suspicion before they can get the location data of a cell phone from the network operator over a longer period of time.

The current case is called Leaders of a Beautiful Struggle, Erricka Bridgeford et Kevin James v. Baltimore Police Department et Michael S. Harrison and was brought before the US Federal Court of Appeals for the fourth federal judicial district under file number 20-1495. The ruling serves as a model for other courts and is binding in Maryland, both Virginias, and both the Carolinas. The police could request a hearing from the US Supreme Court, but this is rarely granted.


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