Should local police spy on their city with planes? Baltimore says yes AP Photo/Patrick Semansky
In this March 31, 2016 photo, Baltimore Police Department Officer Jordan Distance stands on a street corner during a foot patrol in Baltimore. One departmental change since the death of Freddie Gray: recruits undergo mandatory community-engagement training, and the department is deploying full-time patrol officers to walk the most crime-ridden neighborhoods. (AP Photo/Patrick Semansky)

Security cameras have become commonplace. Digital surveillance makes many of us uneasy, but not all. GPS tracking, I suspect, strikes most as creepy. And spying by drone seems to strike most as a step too far.

But what about plane surveillance? If it sounds outlandish in the context of everyday American life, I assure you it is not. In Baltimore, police have secretly used small aircraft to spy on Charm City for months, employing technology originally developed for battlefield use in Iraq. From a piece in the Atlantic:

Ask the residents of any major American city to vote on a program of total aerial surveillance—where the cops would record footage of everything that happened within municipal borders, then store the high-resolution video on hard drives, so that they could effectively go back in time, tracing the outdoor movements of any individual—and the proposal would, at the very least, trigger furious debate.

But what if the police didn’t ask permission? What if they began recording their city’s residents from above without even bothering to inform their elected overseers?

That is what the police in Baltimore have just done.

It is illegal, in Maryland, to record a phone call without informing the person on the other end. Yet Baltimore police have been using an eye in the sky to surveil the whole city for months on end, recording hi-resolution footage and storing it on hard drives so that the movements of residents can be accessed at any time in the future.

They began doing this in secret, with the help of a private company, launching the dystopian collaboration without even consulting Mayor Stephanie Rawlings-Blake.

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It should go without saying there’s no way in hell this is constitutional. The Fourth Amendment provides that no person or property can be searched without a warrant, and the warrant can only be issued if police “particularly describ[e] the place to be searched, and the persons or things to be seized.”

You don’t have to be a constitutional scholar to realize “all of Baltimore” does not count as a particular enough description.

In fact, the whole reason we have the Fourth Amendment is because the Founders vehemently objected to something called “general warrants,” which were, as one might imagine from the name, the opposite of the particular warrants the amendment demands. From the Washington Post:

A general warrant is a document issued by the executive branch, or a court. It is not based on any prior evidence of wrongdoing. It lacks particularity regarding the person or place to be searched, or the papers or records to be seized. It is not supported by oath or affirmation. It is used to find evidence of wrongdoing.

For centuries prior to the U.S. founding, English jurists and legal scholars rejected general warrants as the worst exercise of tyrannical power. As Sir Edward Coke announced in parliament in 1628, ‘If [general warrants] be used per man datum domino regis, or for matter of state,’ then we are gone, and we are in a worse case than ever.’ …  [In America,] State after state went on to outlaw general warrants in their constitutions, before the Fourth Amendment prohibited it in the federal Constitution.

What Baltimore has created here is a de facto general warrant. The city is not looking for evidence of a specific crime in a specific time and place. It is looking everywhere, at everything, hoping to catch someone in some indiscretion that could be prosecuted by law. (And remember, these days, just about every indiscretion can be.)

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Our Founders didn’t have to see planes flying over Baltimore to realize this sort of spying is tyrannical, or that, once given a toehold, its spread is sure and insidious. Already, as Bloomberg documented last week, a similar program may be coming to your neighborhood. It’s being pitched to police departments in other cities right now.

To borrow Coke’s words from nearly 400 years ago, we are, indeed, “in a worse case than ever.”

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