Federal appeals court rebukes Baltimore spy plane program

Federal judges had sharp words last week for Baltimore’s defunct aerial surveillance program, warning that the spy planes afforded police almost limitless surveillance powers if used unchecked and threatened everyone’s personal privacy.

In an 8-to-7 decision Thursday, the 4th Circuit U.S. Court of Appeals in Richmond, Virginia, ruled against the city related to a temporary injunction sought by activists to stop the camera-equipped airplanes and seal the footage. The planes were grounded last year, and the city’s spending board canceled the program months ago.

The judges’ words were notable for their rebuke of the controversial program.

“Allowing the police to wield this power unchecked is anathema to the values enshrined in our Fourth Amendment,” Chief Judge Roger Gregory wrote in the opinion.

The planes stopped flying in October, leaving police with nearly 6.7 million images. Baltimore Police deleted most of the data — all but 14% of the images or about 950,000, the judges wrote. Officials believed this data was the minimum amount necessary to support 200 cases aided by spy plane footage, the judges wrote.

“Essentially what the court is saying is that all of this data is the fruit of the poisonous tree,” said David Rocah, the senior attorney with the ACLU of Maryland.

He said the opinion slams the door on any chance the city might change course and restart the program. Further, Rocah believes the opinion means police won’t be able to mine the cache of 950,000 images for new evidence to introduce in open cases.

Some images already have been entered as evidence in cases. Prosecutors and defense attorneys are left to argue over whether these photos and videos should be allowed at trial.

Rocah said the opinion should warn off other cities from flying such spy planes.

“Here we have a rare instance where the law is grappling with the technology prior to its widespread deployment,” he said. “Calling this a virtual time machine is not an exaggeration. I think it was extraordinarily important that we were able to get the courts to grapple with this at the outset.”

City attorneys could try and appeal the decision on the injunction to the U.S. Supreme Court. A federal lawsuit is still pending over the surveillance program.

“We are exploring our options,” City Solicitor Jim Shea said Friday. “We are disappointed in the result of the opinion, but the program has been suspended and there are no plans to reinstate it.”

Criticism erupted in 2016 after it was discovered the surveillance planes were secretly flying over Baltimore unbeknownst to many city officials and without public notice. The planes were grounded then, but relaunched last year as part of a trial program.

The nonprofit ACLU sued to ground the planes and sought an emergency injunction, saying the planes amounted to the “most wide-reaching surveillance dragnet ever employed in an American city.”

A federal judge denied the injunction. Then the ACLU took its arguments to the 4th Circuit U.S. Court of Appeals.