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Editorial Advisory Board: Keep the ‘eye in the sky’ closed

We have written before about the “spy plane” that has flown over Baltimore.

In an editorial published two years ago, we noted several recommendations about the aerial surveillance program from the Police Foundation, a national group. Among them were:

  • Before implementing the technology on a consistent basis, police should seek an external assessment of its constitutionality.
  • Police should identify and implement transparency and accountability measures to ensure the public has full access to the progress and effectiveness of the program.
  • Police should ensure that an adequate data collection system is in place so that an evaluation can determine whether the program prevented crime and was cost-effective.
  • Police and the Baltimore State’s Attorney’s Office should have a written agreement regarding the use of the surveillance data for prosecutorial purposes.

And we noted our concerns:

“The board has serious concerns about the use of this pervasive surveillance technology and its impact on privacy and is not prepared to endorse the practice. That said, while the proposed recommendations of the Police Foundation report may not resolve all of our concerns, they are a marked improvement over the lack of transparency and oversight that has thus far characterized the program.” We also called on the Maryland attorney general to issue an opinion about the constitutionality of the program — since Supreme Court cases addressing aerial surveillance are at least 25 years old and do not take into account new, vastly improved technology.

It seems that none of the recommendations of the Police Foundation nor our concerns or our call to the attorney general to issue an opinion have been implemented or addressed. However, the “spy plane” program may be coming back anyway. Two articles, one in The Appeal (Oct. 26, 2018) and another in The Baltimore Sun (Sept. 10, 2019) may have put the plane up in the air again — but without any reasonable policies in place.

The Baltimore Sun article features a letter sent by Gov. Larry Hogan to Baltimore Mayor Bernard C. “Jack” Young and Police Commissioner Michael Harrison about the crime problem in the city. The governor pledged $21 million to combat the problem and exhorted city officials to reduce the homicide rate to under 200 per year — the city has had more than 300 homicides annually for four years in a row.

The extensive letter mentions the aerial surveillance program: “We are aware of the Baltimore Community Support Program, often referred to as the ‘Eye in the Sky,’ which is estimated to be able to reduce crime by 20-30% in the first year by a combination of gathering evidence and deterring criminals from engaging in unlawful conduct. We understand that this has been offered at no cost to Baltimore for up to three years. We urge you to implement this program immediately.”

The plane appeared to have been grounded in 2016, but that might change. According to The Baltimore Sun, Mayor Young and Commissioner Harrison recently met with Ross McNutt, founder of the Ohio-based Persistent Surveillance Systems, the operator of the plane. However, some members of the City Council have their doubts and the Maryland ACLU (among others) is vigorously opposed to the spy plane program.

In the Sept. 20 front-page article in The Baltimore Sun, McNutt proposed the use of three spy planes flying simultaneously over Baltimore city. The three planes have the capability to cover perhaps 80% to 90% of Baltimore. Each plane would fly 40 to 50 hours a week. Funding for the planes would come from two Texas-based donors, Laura and John Arnold. In a statement quoted by the Sun, the Arnolds expressed strong interest in funding the expanded program but said nothing was certain yet.

In the Appeal article, McNutt offered a new reason to use the spy plane: to surveil the police. As he said in a recent public hearing: “We (would) hold police accountable. We provide unbiased information as to police activities. We can go back in time and see what happened at the scene of an incident. Just as we can deter potential criminal misconduct, we can also deter police misconduct.”

Neither reason — deterring criminals from engaging in unlawful conduct or deterring police misconduct — is enough to quell our concern expressed two years ago. Without some of the recommendations of the Police Foundation in place and without an opinion letter from the attorney general, the spy plane – or planes — should stay grounded.

Editorial Advisory Board member Arthur F. Fergenson did not take part in this editorial.

EDITORIAL ADVISORY BOARD MEMBERS

James B. Astrachan, Chair

James K. Archibald

Arthur F. Fergenson

Nancy Forster

Susan Francis

Michael Hayes

Ericka N. King

Stephen Z. Meehan

C. William Michaels

Angela W. Russell

Debra G. Schubert

L. Mark Stichel

Michael P. Van Alstine

Vanessa Vescio

The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the board attempt to develop consensus on issues of importance to the bench, bar and public. When their minds meet, unsigned opinions will result. When they differ, or if a conflict exists, majority views and the names of members who do not participate will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.