« UN Summit on the Movement of Refugees and Migrants | Main | AirBnB as Online Intermediary? »

Thursday, December 15, 2016

Wide Area Surveillance - "Google Earth with TiVo Capability"

 Reports emerged this fall that the Baltimore Police Department had accepted private funding to secretly retain the services of Persistent Surveillance Systems and its wide area surveillance system to help it investigate crime. Persistent Surveillance Systems owns an airplane. On the belly of the plane is an array of cameras. At first light, a pilot flies the plane up to 10,000 feet and circles the city for hours. While it is circling the city, every second, the cameras take a still image of a 30 square mile area. The photos are instantly processed and downlinked to a command center on the ground. Operators on the ground can pull up the images, and from any specific moment, go backwards or forwards in time, second by second, and watch everything that the plane saw. Operators can follows cars and people fleeing a crime scene, and look backwards to see how they got there. The system's developer, Ross McNutt, has called it "Google Earth with TiVo capability."

The system was developed to determine who was killing American soldiers in Iraq with roadside bombs. Baltimore's use followed shorter, but equally secret, law enforcement stints in Compton (Los Angeles) in 2012 and Ciudad Juarez, Mexico in 2009. There are some pretty amazing success stories: the system was used to track a murderer to a previously unknown cartel headquarters building; it followed a moving van used by a burglar to a parking lot across town, and enabled a show-up to confirm the ID of the burglar in less than an hour; it's tracked purse snatchers and all sorts of other offenders that would otherwise have been much more difficult, if not impossible, for law enforcement to track down.

This is a system that makes law enforcement drool. It also raises a number of legal questions, none more important than whether evidence gathered by law enforcement through a wide are surveillance system operating without a warrant would be considered to violate the 4th amendment's ban against unreasonable searches and seizures and would be subject to exclusion were it offered into evidence in a criminal proceeding.

As with all new technologies used by law enforcement, there is precedent addressing the constitutionality under the 4th amendment of some similar-ish technologies. According to California v. Ciraolo (1986), when police fly over someone's property at an altitude of 1000 feet and observe that there is marijuana growing in the fenced backyard, that is not a search for 4th amendment purposes. Similarly, according to Florida v. Riley (1989), the police can use helicopters to peer into a man's poorly-maintained greenhouse from an altitude of 400 feet (two roof panels were missing) and see that he is growing marijuana in the greenhouse, and likewise not effect a search for 4th amendment purposes.

However, in a case called Kyllo (2001), the Supreme Court held that law enforcement's use of technology that is not in general public use (infrared cameras, in that case) to explore the details of a private home that would previously have been unknowable without a physical intrusion was a search and was presumptively unreasonable without a warrant. And most recently, in a case called Jones (2012), the Supreme Court held that attaching a GPS  tracking device to a vehicle for 4 weeks to monitor its travels 24/7 along the public roadways constituted a search protected by the fourth amendment's reasonableness clause (the court didn't answer whether the GPS tracking was reasonable).

Wide area surveillance doesn't (yet) use infrared cameras, but it can peer into backyards (like the surveillance in Ciraolo and Riley, though from much higher altitudes using expensive cameras instead of the naked eye) and it can follow vehicles along the roads (like the persistent surveillance in Jones, though the trail from the sky ends when the plane lands to refuel or the skies go dark).

These cases all involved targeted surveillance of a single vehicle or single piece of property, in sharp contrast to the wide-area surveillance systems that see 30 square miles at once (but then are revisisted to follow a single person or vehicle). And Jones (maybe?) hinged on the attachment of the GPS device to the vehicle. Wide area surveillance involves no such trespass on an individual's property. So maybe under the case law it's not even a search, and the 4th amendment isn't triggered. But the facts are different in many ways from the major precedents. No court, as far as I can gather, has yet ruled on an objection to evidence obtained via wide area surveillance systems, and no scholars have yet explored the issue. 

My own scholarly take is for another day. More immediately, I am planning on using the topic of wide area surveillance on Day 1 of my CrimPro class next semester, to introduce the topics of privacy, and what constitutes a search, and the possible contours of reasonableness, through the students' intuitions about whether law enforcement should be able to persistently surveil us from above and use what they record against us. If anyone has thoughts or suggestions for making it a useful introductory exercise for CrimPro, I'm all ears.

Posted by Kevin Lapp on December 15, 2016 at 06:48 AM | Permalink


Josh Blackmon pointed me to an article he published a couple of years ago considering the tort implications of google eart, google street view, and what he dubbed "omniveillance" - Josh Blackmon, Omniveillance, Google, Privacy in Public, and the Right to Your Digital Identity: A Tort for Recording and Disseminating an Individual's Image over the Internet, 49 Santa Clara L. Rev. 313 (2012).

Posted by: Kevin Lapp | Dec 15, 2016 1:35:09 PM

Post a comment