CONSTITUTIONAL LAW - FOURTH AMENDMENT - FOURTH CIRCUIT HOLDS WARRANTLESS ACCESS OF AERIAL SURVEILLANCE DATA UNCONSTITUTIONAL.

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Date: Jan. 2022
From: Harvard Law Review(Vol. 135, Issue 3)
Publisher: Harvard Law Review Association
Document Type: Case note
Length: 3,753 words
Lexile Measure: 2260L

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Constitutional Law--Fourth Amendment--Fourth Circuit Holds Warrantless Access of Aerial Surveillance Data Unconstitutional.--Leaders of a Beautiful Struggle v. Baltimore Police Department, 2 F.4th 330 (4th Cir. 2021).

The Fourth Amendment safeguards "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." (1) In Carpenter v. United States, (2) the Supreme Court held that the ability to build a comprehensive chronicle of a person's movements over an extended period of time using cell phone location data violated reasonable expectations of privacy; thus, access to such data constituted a Fourth Amendment search. (3) While Carpenter was widely hailed as a momentous success for privacy activists, (4) questions about its reach went unanswered. Notably, some of these unanswered questions implicate issues of racial equity--issues that have gained nationwide prominence through social movements in the recent past. Recently, in Leaders of a Beautiful Struggle v. Baltimore Police Department, (5) the en banc Fourth Circuit helped delineate the reach of Carpenter. The Fourth Circuit held the access of data that in the aggregate allowed police to deduce an individual's identity from the whole of their movements to be a search--as such, the warrantless use of such data violated the Fourth Amendment. (6) In helping determine Carpenter's reach, Beautiful Struggle revealed a congruence with recently foregrounded social justice issues, exemplifying how social movements can inform judicial reasoning and spur constitutional change.

The Baltimore Police Department (BPD) announced in December 2019 that it had contracted with Ohio-based private contractor Persistent surveillance solutions (PSS) to implement the Baltimore Aerial Investigation Research (AIR) program. (7) Intended to track movements linked to serious crimes, the AIR program obtained about twelve hours of coverage of around ninety percent of Baltimore every day of the week, weather permitting, using surveillance planes that flew at least forty hours a week and were equipped with aerial cameras able to capture one image of up to thirty-two square miles per second. (8) All AIR imagery data, analyzed or not, were retained for forty-five days, while reports and associated imagery data were retained indefinitely as needed for legal proceedings and until the relevant statutes of limitations had expired. (9) A group of grassroots community advocates filed suit against the defendants (the BPD and Police Commissioner Michael Harrison), on April 9, 2020, challenging the constitutionality of AIR on Fourth Amendment grounds. (10) Moving for a preliminary injunction and temporary restraining order, the plaintiffs requested the defendants be enjoined from operating AIR, which would prohibit the defendants from "collecting or accessing any images through the program." (11)

One week before the planes took flight, the district court denied the plaintiffs' request for preliminary relief. (12) The court found the plaintiffs unable to "bear[] the 'heavy burden' of making a 'clear showing that [they were] likely to succeed at trial on the merits,'" (13) reasoning that both the Supreme Court and the Fourth Circuit had historically "upheld the use of far more intrusive warrantless surveillance techniques" than Baltimore's aerial surveillance...

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Gale Document Number: GALE|A690097710