Analysis: It's a Bird, It's a Plane - No, It's a Police Drone Violating the 4th Amendment!
By Adeel Bashir
“Always eyes watching you and the voice enveloping you. Asleep or awake, indoors or out of doors, in the bath or bed – no escape. Nothing was your own except the few cubic centimeters in your skull.”[1]
The Muslim-American community is no stranger to these lines from the Orwellian classic, Nineteen Eighty-Four. On the one hand, as persons living on U.S. soil, Muslim-Americans enjoy the constitutional protections of the Fourth Amendment against unreasonable searches and seizures.[2] On the other hand,especially following September 11, 2001, Muslims have endured, if not been the target of suspicion-less surveillance ostensibly conducted in the name of security. This list of surveillance programs includes the National Security Agency’s domestic eavesdropping operation that secretly collected millions of Americans’ telephone records[3]; the Department of Homeland Security’s policy of warrantless searches of electronic devices at the border[4]; and the New York Police Department’s program “to monitor the lives of Muslims, their businesses, houses of worship, organizations, and schools in New York City and surrounding states.”[5]
As technology has advanced, so too has the ease by which government officials can conduct even more intrusive warrantless surveillance of our communities. Take advancements in modern cell phones. Given their immense storage capacity, the breath of personal information available on these devices, their use of GPS tracking, and their ability to interface with cell towers and other cell phone users, the Supreme Courtdescribes cell phones as “holding for many Americans the privacies of life.”[6] The Court’s 2014 landmark decision in Riley thus emphasized that a typical search of a cell phone “would typically expose to the government far more than the most exhaustive search of a house,” which had traditionally received the highest level of Fourth Amendment protection.[7]
Riley is significant because the Court held that the “fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.”[8] Indeed, in the later case of Carpenter v. United States, involving the warrantless access to historical cell-site record, the Supreme Court affirmed the principle that while technological advancements may facilitate the ease by which the government may surveil its population, those advancements do not eliminate Fourth Amendment privacy concerns implicated by such surveillance—if anything, they exacerbate those concerns.[9]
I. Riley, Carpenter, and the Supreme Court’s View Toward Technology, Privacy, and Security.
The ultimate measure of the constitutionality of a government search under the Fourth Amendment is reasonableness. As a result, the constant analytical framework in these cases addressing the intersection between privacy and technology involves weighing a technology’s intrusion upon an individual’s privacy interest against the government’s interest in using the technology in the name of security.
Courts engaging in this analysis typically regard technological advancements in surveillance as weighing on the government’s side of security. In Riley, for example, the Court expressed that “our decision today will have an impact on the ability of law enforcement to combat crime.”[10] The Riley Court reasoned that “[c]ell phones have become important tools in facilitating coordination and communication among members of criminal enterprises, and can provide valuable incriminating information about dangerous criminals.”[11] The Court therefore accepted that its holding meant: “Privacy comes at a cost.”[12]
Similarly, in Carpenter, in discussing the government’s access to historical cell-site records, the Supreme Court noted that “the progress of science has afforded law enforcement a powerful new tool to carry out its important responsibilities.”[13] Even so, the Carpenter Court declined to grant the government unrestricted access to a wireless carrier’s database of physical location information because of “the deeply revealing nature” of historical cell-site records, “its depth, breadth, and comprehensive reach, and the inescapable and automatic nature of its collection.”[14]
II. The Fourth Circuit’s Apparent Shift in View Toward Surveillance and Security.
If Riley and Carpenter reflect a traditional view that more surveillance equates to greater security, the Fourth Circuit’s recent en banc decision in Leaders of a Beautiful Struggle v. Baltimore Police Department, might represent a break from this antiquated belief.[15]Leaders of a Beautiful Struggle involved a 2019 (but now-defunct) Aerial Investigation Research program known as “AIR”—a first-of-its-kind aerial surveillance program that gave the Baltimore Police Department the ability to track every movement of every person outside in Baltimore.[16]
AIR operated as follows: Multiple planes fly distinct orbits above Baltimore, equipped with camera technology known as the “Hawkeye Wide Area Imaging System.” The cameras capture roughly 32 square miles per image per second, for at least 40 hours a week, obtaining roughly twelve hours of coverage of around 90% of the city each day. While data collection was limited to daylight hours and photographic resolution to one pixel per person or vehicle, neither restriction is required by the technology. “In other words, any single AIR image—captured once per second—includes around 32 square miles of Baltimore and can be magnified to a point where people and cars are individually visible, but only as blurred dots or blobs.”[17]
The AIR program’s express goal was to identify suspects and witnesses to help the Baltimore Police Department solve crimes.[18] Thus, the technology gave analysts the ability to prepare reports and briefings about a target crime as requested by the officers on the case.[19] And because AIR data was retained for 45 days, law enforcement could use AIR to “travel back in time” to observe a target’s movements, forwards and backwards.[20]
Following Riley’s and Carpenter’s reasoning, the en banc Fourth Circuit concluded that because “the AIR program opens ‘an intimate window’ into a person’s associations and activities, it violates the reasonable expectation of privacy individuals have in the whole of their movements.”[21] Consequently, the Fourth Circuit held that “accessing [AIR’s] data is a search, and its warrantless operation violates the Fourth Amendment.”[22]
But departing from Riley and Carpenter, the Fourth Circuit rejected the premise that the AIR program, or surveillance in general, correlates with increased security.[23] This may surprise some; after all, add in the element of time travel and AIR could seamlessly fit into the plot of early 2000’s Hollywood renditions as Minority Report[24] or Out of Time.[25]
But Judge Rodger Gregory, the Fourth Circuit’s first African American judge, wrote not only the en banc majority but also authored a concurring opinion. And in the latter, he took direct issue with the dissent’s view that police surveillance is an effective means to combat crime.[26]
Judge Gregory expressed skepticism that “this logic genuinely respects and represents the humanity, dignity, and lived experience of those the dissent ventures to speak for.”[27] Rather, he criticized the dissent for “entirely disregard[ing] the systems, relationships, and foundational problems that have perpetuated Baltimore’s epidemic of violence. Most notably, Baltimore was the first city to implement formal racial segregation in 1910.”[28] Judge Gregory also noted that “Baltimore spends more on policing,per capita, than virtually any other comparable city in America,” and that “Black neighborhoods in Baltimore are already disproportionately policed.”[29]
In the end, Judge Gregory shined a spotlight on the Leaders of a Beautiful Struggle’s message: “[I]n their view, opposition to increased police surveillance ‘is not about being anti-police,’ nor ‘about ignoring the impact of violent crime.’ Rather: It is about challenging the racial imbued ideology of police-ism: the belief that all urban problems must be addressed primarily or exclusively through the lens of policing.”[30]
***
Leaders of a Beautiful Struggle may well signal an important shift in the way courts view advancements in technology and surveillance, and their impact upon privacy and correlation to combatting crime. Indeed, there may will be a broader shift in the way courts look at the relationship between policing and crime. For instance, just this past term Justice Sotomayor authored a powerful concurrence taking to task what she described as the Supreme Court’s “sanitized history” of the nation’s tough-on crime laws, including the war on drugs and the impact of the 100-to-1 crack-to-powder sentencing ratio had upon Black communities.[31]
For the Muslim-American community, this type of nuanced approach from the courts should be welcomed as an important step in recognizing the multi-dimensional analysis required both to address the root causes, and to find solutions to crime. For far too long Muslim-Americans, along with many traditionally marginalized U.S. communities, have listened to purported security rationales underlying the need for heighted surveillance and intrusion into privacy. But as cases like Leaders of a Beautiful Struggle show, no historically marginalized community, Muslim-American or otherwise, should have to accept the false choice between privacy and security, particularly as technological advancements give the governmentgreater access to privacy than ever before in history.
In Nineteen Eighty-Four, Orwell also wrote: “[I]f you want to keep a secret you must also hide it from yourself.”[32] While this sentiment is fitting for the dystopian world of Nineteen Eighty-Four, the evolution of cases ranging from Riley, Carpenter, and now Leaders of a Beautiful struggle teach us that ours should be a world in which the cost of security does not have to be our privacy or dignity. Rather, as Justice Brandies famously wrote in his Olmstead v. United States dissent, as “[s]ubtler and more far-reaching means of invading privacy have become available to the Government,” courts should ensure that the “progress of science” does not erode Fourth Amendment protections.[33]
Justice Brandies probably did not have the Muslim-American community in mind when he wrote these now infamous words. But the Muslim-American community should no doubt make sure that as technology continues to advance, future courts still adhere to his message for the sake of not only of our own community, but for all communities across our nation.
Adeel Mohammad Bashir is an Assistant Federal Public Defender and Appellate Supervisor with the Office of the Federal Public Defender, Middle District of Florida. Prior to his service at the Defender's Office he worked as a litigation associate at Mayer Brown, LLP, from 2010-2012. He is a 2009 graduate of George Mason University, Antonin Scalia Law School.
Sources:
[1] Orwell, George. Nineteen Eighty-Four. London: Penguin Books along with Secker & Warburg, 1989. [2] U.S. Const. Amend. IV; see also United States v. Verdugo-Urquidez, 494 U.S. 259 (1990). [3]See United States v. Moalin, 973 F.3d 977, 996 (9th Cir. 2020). [4] See Alasaad v. Mayorkas, 988 F.3d 8, 13 (1st Cir. 2021); United States v. Cano, 934 F.3d 1002, 1016 (9th Cir. 2019); United States v. Vergara, 884 F.3d 1309, 1311-12 (11th Cir. 2018); see also Jeff J. Roberts, Social Media at the Border: Can Agents Ask for Your Facebook Feed?, Fortune, Feb. 8, 2016 (documenting complaints from Muslim-Americans about CPB agents subjecting their phones and social media accounts to extra scrutiny). [5]Hassan v. City of New York, 804 F.3d 277, 285 (3d Cir. Feb. 2, 2016). [6]Riley v. California, 134 S. Ct. 2473, 2494 (2014). [7]Id. at 2491 (emphasis in original). [8]Id. at 2494-95. [9] 138 S. Ct. 2206, 2217 (2018). [10]Riley, 134 S. Ct. at 2493. [11]Id. [12]Id. [13] Carpenter, 138 S. Ct. at 2223. [14] Id. [15] Leaders of a Beautiful Struggle v. Baltimore Police Dep’t, -- F.4th --, 2021 WL 2584408 (June 24, 2021) (en banc). [16]Id. at *1. [17] Id. [18] Id. at *9-10. [19] Id. at *2. [20] Id. [21] 2021 WL 2584408, at *9. [22] Id. at *10. [23] Id. at 13. [24] See Minority Report (2002), https://www.imdb.com/title/tt0181689/. [25] See Out of Time (2003), https://www.imdb.com/title/tt0313443/. [26] See 2021 WL 2584408, at *14 (Gregory, J, concurring). [27] Id. [28] Id. [29] Id. at *15. [30] Id. (quoting Lawrence Grandpre, Who Speaks for Community? Rejecting a False Choice Between Liberty and Security, Leaders of a Beautiful Struggle Blog (June 5, 2020), https://www.lbsbaltimore.com/who-speaks-for-community-rejecting-a-false-choice-between-liberty-and-security). [31] Terry v. United States, 141 S. Ct. 1864 - 68 & n.1 (2021) (Sotomayor, J. concurring) [32] Supra, n.1. [33] 227 U.S. 438, 473-474 (1928) (Brandies, J, dissenting).
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