Baltimore’s surveillance plane potentially infringes on rights, audit finds, even though police mostly followed the rules

BALTIMORE — Baltimore’s aerial surveillance pilot program “for the most part” stuck to the rules put in place when it was approved earlier this year, but strayed at times outside its mission in ways that could infringe on civil rights, an independent audit contends.

The Policing Project of New York University, one of three groups hired by the city to evaluate the police department program, focused in large part on what it calls constitutional implications of the Aerial Investigation Research, or AIR, pilot project. It also attempted to evaluate whether Baltimore police have taken actions beyond the stated goal of tracking active crimes and suspects.

The 57-page report emphasized that it was not measuring whether the program, which flies planes outfitted with high-technology cameras above the city, has helped solved crimes. That determination will be made in another evaluation.

“We cannot know if AIR delivers the benefits it promises. The efficacy of AIR is being assessed by the RAND Corporation, and until those results are public, the benefits remain speculative,” the NYU Policing Project report said. “The theory that AIR will assist in identifying individuals responsible for violence is a plausible one, particular(ly) when the investigation begins with a crime scene.”

Baltimore police said in a statement recently that it designed the program “to be limited, capturing imagery only during the day and never at night, and at resolutions that do not permit individual identification. As such, and as indicated in the Department’s brief, the program did not allow for continuous, long term-tracking.”

The audit comes six weeks after the surveillance plane program had its final flight on Oct. 31, ending the 6-month trial. Police have not said whether they plan to continue the program or let it lapse.

Baltimore police have not released the report, but it was included as an exhibit in a federal court appeal by the American Civil Liberties Union obtained by The Baltimore Sun. The ACLU sued the police department in April over the program.

The NYU audit covered wide territory in evaluating the program, including weighing in on the legal implications, which it acknowledged are somewhat speculative in part because U.S. Supreme Court rulings don’t adequately cover such technology.

But it did hone in on two specific aspects it found concerning. The first is that the city’s Board of Estimates voted to approve the project, not the City Council. The audit said that the program collects data on Baltimore residents daily, even when the vast majority of the residents have “done nothing wrong. That makes it imperative that approval comes from the city’s entire elective body, and not a smaller board.

“(This is) what we see as AIR’s greatest shortcoming — that (it) has been deployed without robust democratic approval and oversight,” the report said. “The only formal voice (the public was) given was the Baltimore Board of Estimates’ up or down approval. . . . In our view, any program of surveillance like AIR should be approved by a representative body with the power to adopt an appropriate regulatory framework.”

Secondly, that police relied on “supplemental reports” to justify following suspects beyond the point of the initial crime, and for multiple days. It said that police used the planes to track suspects long after the initial crime, which they said was not approved by the initial agreement.

The auditors did laud the department for seeking legal opinions on that practice rather than just doing it randomly.

Another aspect of concern for auditors is that some video material not directly attached to crimes — perhaps a lot of material — will be retained far longer than the 45 days called for in the original agreement. Some will be retained indefinitely because of shortcomings in the technology, according to the audit.

The city and supporters of the program have said the “vast majority of the imagery” captured by the program will be deleted and any imagery not identified as relevant to the investigation will be destroyed after 45 days. Yet, in practice, the majority of the aerial imagery has been retained, the audit contends.

The audit described that as a “sharp” departure from public understanding of the Baltimore police program.

It also delved into the dangers that the program could infringe on and exploit racial disparities in Baltimore.

“Decisions about whom to track and where to deploy AIR could contribute to such disparities, a point which warrants serious consideration — especially in light of the historically fraught relationship between BPD and the Black community.”

A nonprofit and its donors put up nearly $3.7 million to fund the program, which began earlier this year. In addition to the NYU Policing Project audit, other reviews by outside agencies are still being being finalized.