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Why Baltimore’s Covert Spy Plane Program Is A Major Battleground For Privacy And Free Speech

Published with permission from AlterNet.

A hidden camera in the sky watches people’s movements on the ground; ex-military private contractors control the cameras and run the operation to avoid government oversight. In the background, billionaire funders salivate at the possibility of plush government contracts. In the city of Baltimore, this dystopian scenario is already real life.

A private security firm, Persistent Surveillance Systems, with funding from a billionaire former hedge fund manager, has been filming and recording the people of Baltimore from the skies, using a surveillance plane with an ultra-wide-angle camera that circles the city recording the imagery to massive hard drives. The range encompasses 30 square miles simultaneously, almost a third of the city.

“Imagine Google Earth with TiVo capability,” gushes Ross McNutt, the founder of PSS.

The technology was first developed by the military and deployed in the siege of Fallujah. In an all-too-familiar transition, this battlefield technology needs a new marketplace in order to maintain profitability. Wars come and go, but the domestic marketplace is persistent.

Such is the growth cycle of the surveillance industrial complex, the morphed offspring of the military industrial complex that has distorted values and driven policies for years on end. Capital interests profit from the people’s collective and individual loss of personal privacy.

McNutt founded Persistent Surveillance Systems to bring that battlefield technology home to monitor the people of the United States. He viewed Baltimore as an excellent proving ground in the aftermath of the Freddie Gray case. However, McNutt lacked necessary finances. In stepped Texas-based hedge fund manager and billionaires John and Laura Arnold. The Arnolds’ foundation donated $120,000 to a local foundation, the Baltimore Community Foundation, which funded the spy plane.

By securing private funding, the Baltimore Police Department was able to use the dragnet surveillance technology off-the-books. There was no government oversight or authorization from elected officials, no public disclosures to the community or hearings before the City Council. It was all surreptitious and undisclosed until described last week in a bombshell article in Bloomberg Businessweek.

The Baltimore City Council has, in the aftermath of the Bloomberg Businessweek disclosure, stated that it will hold hearings “as soon as possible” without yet setting a date. The Council should determine which top police officials, including Police Commissioner Kevin Davis, were aware of this covert surveillance program. Each should be terminated by the mayor.

Democratic society cannot tolerate secret police any more than it can tolerate secret police operations. It constituted a gross breach of official duties for police to have failed to bring this mass surveillance program to the attention of the public and elected officials. Termination is the bare minimum degree of individual professional accountability demanded by this breach.

The Supreme Court’s Behind-the-Times Analysis of Mass Surveillance

Not merely a violation of trust, the mass surveillance technology should be treated as a violation of law. The Supreme Court, however, has not charted a clear doctrine in the analysis of mass surveillance technologies’ impact on fundamental civil liberties. Some justices recognize the threat posed, but whether their views will gain a majority remains to be seen.

In United States v. Jones, presented with a challenge to the use of GPS technology to monitor a suspect’s movements on public roadways around-the-clock for 28 consecutive days, the Supreme Court’s nine justices bandied about no less than three distinct legal theories for finding such use of technology without a warrant to be unconstitutional.

The Jones majority opinion, written by Justice Antonin Scalia, avoided the core issues of how the Fourth Amendment addresses persistent surveillance technologies. The majority, resurrecting an old doctrine, found Fourth Amendment interests were violated because police trespassed on the suspect’s property interests by affixing the technology to the suspect’s car without a warrant.

Justice Alito, joined by three other justices, disparaged Scalia’s approach as applying “18th century tort law” to a controversy centered on a “21st-century surveillance technique.”

A second theory identified by concurring justices would have held the search unconstitutional under modern constitutional standards first articulated in the 1967 landmark case of Katz v. United States, that a Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable.

The reasonable expectation of privacy standard was historic because it detached the analysis from property or trespass law. In Katz, the Supreme Court held that “the Fourth Amendment protects people, not places,” finding a constitutional violation where police attached an eavesdropping device to monitor conversations that took place in a public telephone booth.

How the Government Creates an Intimate Picture of Your Private Life

“Mosaic theory,” the third legal theory referenced by concurring justices, is the most precise of all three and may ultimately have great significance for application to mass surveillance technologies, especially those that capture and catalogue public activities and movements.

The courts have held that there is not a privacy interest in publicly revealed activity, such as roadway movement. Mosaic theory recognizes that the aggregation of data or the persistent surveillance of public activities can create an intimate picture of a person’s life so revealing that government collection without a warrant violates Fourth Amendment privacy interests.

Even though a single snapshot of a person’s public movement does not trigger a privacy interest, the aggregation of many such snapshots or data points creates a mosaic that is so revealing that it unconstitutionally invades privacy.

While going on a single public trip, for example, a person understands her movements are observable to others, i.e., is not private. The whole of a person’s movements, over time, is not actually exposed to the public because it is impossible that any stranger or random person would observe all those movements. As one court described mosaic theory, “the whole is something different than the sum of its parts.”

Justice Sonia Sotomayor in Jones described how movement tracking “generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.” As she pointed out, this could include trips of an “indisputably private nature” including “to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on.”

Justice Sotomayor observed that, “Government can store such records and efficiently mine them for information years into the future.” This is such a dramatic power, Sotomayor warned, that it “may alter the relationship between citizen and government in a way that is inimical to democratic society.”

Dragnet Surveillance Technology as a Tool of Social Control

History is filled with examples of how such information becomes tools, weapons, used by government for political control. One need look no further than J. Edgar Hoover’s dossiers on activists and dissenters, including Dr. Martin Luther King, and how abusive and repressive U.S. government institutions used such information to target and even destroy the lives of people whose social justice organizing threatened the status quo.

No longer does an official need to order breaking and entering to pilfer psychiatric records, as John Ehrlichman sought to do to discredit Daniel Ellsberg. In order to find details of a person’s activities, associations and intentions, the government can engage in dragnet surveillance, aggregation of information and data mining.

With each resurgence of the social justice movement filling the streets, we have seen a renewed devotion of government surveillance and abuse of anti-terrorism authority to target political organizing in the United States. The Partnership for Civil Justice Fund has uncovered and exposed thousands of pages from just the recent years alone documenting the FBI, DHS, fusion centers and other agencies targeting of dissent.

How People Can Reverse the Tide

While the law hesitatingly lurches forward, society need not wait for the justices of the Supreme Court to assert leadership and protect our rights, should a majority of the Court ever do so. As reflected in the Katz expectation of privacy standard, it is society that sets expectations of privacy.

There are some who misguidedly suggest that, given technology’s advances, we should expect an end to privacy because there are no limits to technology’s advances. Just because our privacy can be violated does not mean we should expect or tolerate such violations.

How would this look in action? The Baltimore City Council, when it conducts its hearings, should go beyond mere inquiry. It should take action to prevent recurrence and to establish the expectation of the people of Baltimore to not be subject to mass surveillance without their consent.

The Baltimore council should enact legislation banning deployment of mass surveillance technologies by police or any city agency without prior disclosure, debate and legislative approval. It should establish protocol whereby any such technology must be submitted to the council for an independently conducted Privacy Impact Evaluation that will disclose all nature of data collected, retention policies, access restrictions, and all other information needed to make an assessment of the impact on individual’s privacy including when aggregated with information from other data collection systems.

The decision whether to permit such surveillance rests with the people of the United States. Technology is a societal asset. The use of technology is controlled by us, society’s expectations of privacy, and not by the outer limits of technological capabilities, which as Edward Snowden has revealed, have virtually no limits at all.

Carl Messineo is Legal Director of the Partnership for Civil Justice Fund.

Photo: A model of a military drone is seen in front of an U.S. flag as protesters rally against climate change, ahead of the Democratic National Convention, in Philadelphia, Pennsylvania, U.S., July 24, 2016. REUTERS/Dominick Reuter

There’s One Good Thing About Donald Trump–As Long As He Loses

Donald Trump has shaken American politics to their very core. And in the process, he has, maybe without knowing it, completely re-aligned the positions and appeals of the two major parties. That’s because Trump is an opportunist: He chases political victories where he knows his opponents would be called hypocrites for defending themselves.

He pushed the entire Republican Party to flip its position on free trade (all of his “establishment” picks for vice president supported NAFTA and TPP, until he told them not to) because the party’s now-called “globalist” trade wing was vulnerable in a year of economic populism. He did the unthinkable by calling out George W. Bush for lying about weapons of mass destruction before the Iraq War — in South Carolina, the most military- and Bush-friendly state in the union! — because it’s clear now that that war led to the rise of ISIS and other extremist groups.

And he’s done the same with the Democratic Party, capitalizing on its mistakes. As long as Trump doesn’t become president, his exploitation of the weak spots in our political system can make the whole thing stronger.

For Democrats, that means three things: Drones, deportations, and donations.


While Trump is all over the map on foreign policy, from calling for America-first isolationism to pledging to “bomb the shit out of” ISIS, he has continued to poke at one of the greatest hypocrisies of the Obama era: the Democratic notion of a compassionate counterterrorism policy.

Trump gets to play the war-hungry madman because President Obama, for all it has done to de-escalate George W. Bush’s imperialist atrocities, has spent eight years raining terror on Muslim populations across the Middle East with a brutal drone war. Obama and Clinton can decry Trump’s temperament, which would surely lead to even more death, but they cannot decry his proposed aggressions without talking about their own unpopular war from above.

The same applies to Obama’s role as “Deporter in Chief”: The president has made huge strides in protecting undocumented immigrants and their families with his DAPA and DACA programs, recent Supreme Court ruling aside, and with his announcement this week that the United States would expand a program to accept Central American asylum-seekers.

But he has also broken the record, by a lot, of deportations by a U.S. president: More than 2.5 million people have been deported since Obama took office. And though that pales in comparison to Trump’s proposal that all 11 million undocumented immigrants in the United States be essentially ethnically cleansed, Obama can’t make much of a case that deportations themselves are un-American, given his history with them.

Trump is especially effective on driving home the black mark of corporate sponsorship in the Democratic Party. Trump has in fact forgiven the $47.5 million he had previously only loaned to his campaign. And though he has recently begun fundraising like any other desperate, big-shot presidential candidate — multi-thousand dollar dinners, Super PACs, fundraising emails — the image of Trump as a “self-funder” has forced Hillary Clinton, bank-rolled by big donors and PACs herself, to pledge to overturn Citizens United and work to control money in politics.

So much for the notion that Democrats had to “fight fire with fire” on corporate campaign donations: Donald Trump’s insistent prodding on the corruption issue has forced Democrats to fall back on their ideals as a party; on the notion that they ought to be a crowd-funded party of working people.

We can only hope that, facing the prospect of a new wave of Republican nativism, Democrats are pressured to re-establish their ideological high ground: by ending inhumane deportation policies that split families up, by ending a counterterrorism policy which disregards civilian deaths as “collateral,” and by reckoning with their own financial distance from working class America. Unless they account for the ways in which they have strayed from their ideals, Democrats will continue to be vulnerable to Trump’s brand of demagoguery, which capitalizes on ideological weak points with populist appeals to frustrated voters.

And, not for nothing, such a shift to the left would not only neutralize Trump, but it would also incorporate Bernie Sanders’ movement — and future iterations of it — into the party’s mainstream. Bernie capitalized on many of the same weaknesses in the Democratic Party that Trump has, and perhaps his supporters’ reluctance to support Clinton is a symptom of his attempts to delegitimize what he saw, perhaps correctly, as a corporatist party.

It will be up to Hillary Clinton, and the Democrats who ride her coattails to Washington, to capitalize on Trump’s and Sanders’ greatest vulnerability: Underestimating the capacity of the Democratic Party to change.


Photo: Republican presidential nominee Donald Trump speaks at a campaign rally in Scranton, Pennsylvania, U.S., July 27, 2016.  REUTERS/Carlo Allegri

Obama’s ‘Kill List’ Is Here To Stay

Drone warfare, once a topic of widespread pubic debate in America, has been placed on the mental backburners of most of the US public. A Pew poll in 2015 found that “Fifty-eight percent of respondents expressed approval of U.S. drone strikes, while only 35 percent disapproved. This included nearly three-fourths of Republicans, slightly more than half of Democrats, and 56 percent of independents.” Perhaps the slow burnout of the public debate around this issue marks a tacit approval.

With the presidential election in full swing and the field narrowed to the final three candidates, it’s worth asking a question that the public isn’t, currently: What will happen to President Obama’s so-called “Kill List,” and to America’s drone warfare policy more generally, once he leaves office?

The short answer is: Well, nothing.

The Intercept, which has reported on Obama’s Kill List extensively, describes Obama’s Kill List thusly:

“U.S. intelligence personnel collect information on potential targets… drawn from government watchlists and the work of intelligence, military, and law enforcement agencies… when someone was destined for the kill list, intelligence analysts created a portrait of a suspect and the threat that person posed, pulling it together ‘in a condensed format known as a ‘baseball card.’ That information was then bundled with operational information and packaged in a ‘target information folder’ to be ‘staffed up to higher echelons’ for action. On average, it took 58 days for the president to sign off on a target… At that point, U.S. forces had 60 days to carry out the strike.”

The program has little-to-no transparency in its decision making apparatus, and has even been called an extra-judicial assassination program, given the lack of due process provided to the targets, who in the past have included U.S. citizens.

There are many controversial aspects of American drone policy, but two in particular stand out: first, “signature strikes,” which according to U.S. authorities, target “groups of men who bear certain signatures, or defining characteristics associated with terrorist activity, but whose identities aren’t known.” The New York Times reported that some in the Obama administration joke that when the CIA sees “three guys doing jumping jacks,” they think it is a terrorist training camp.

When the CIA allegedly carried out its first targeted drone killing in February 2002, in Afghanistan, it killed three men near a former mujahedeen base called Zhawar Kili. In the aftermath of the strike, however, authorities appeared not to know who they had killed. A Pentagon spokeswoman stated, “We’re convinced that it was an appropriate target,” but added, “[w]e do not know yet exactly who it was.”

A 2009 study by the Brookings Institute estimates that, along with the 2,000-plus militants killed by drones in Pakistan, perhaps more than 470 non-militants have been killed. More recently, in March of 2016, drones and other warplanes bombed an al-Shabab training camp in Somalia and killed about 150 alleged militants who were gathered at a graduation ceremony. Yet U.S. officials privately acknowledged that they didn’t know the identities of those they killed.

Sense a trend?

It’s made all the more troubling by the administration’s policy of classifying those killed in drone strikes as militants unless there is evidence posthumously produced which proves their innocence. One can only imagine the difficulties of doing so, and how this dramatically decreases the publicly-admitted number of civilian deaths, true or not.

Despite all this, there has been little outcry from the remaining presidential candidates on the matter.

In an April 2016 town hall, Chris Hayes questioned Bernie Sanders about the practice:

“HAYES:  The current authorization which you cite in what Miguel just quoted which is the authorization to use military force after 9/11. That has led to the kill list. This President — literally, there is a kill list. There is a list of people that the U.S. government wants to kill, and it goes about doing it. Would you keep the kill list as President of the United States?

SANDERS:  Look. Terrorism is a very serious issue. There are people out there who want to kill Americans, who want to attack this country, and I think we have a lot of right to defend ourselves. I think as Miguel said, though, it has to be done in a constitutional, legal way.

HAYES:  Do you think what’s being done now is constitutional and legal?

SANDERS:  In general I do, yes.”

The other Democratic candidate, Hillary Clinton, was involved in these sorts of strikes herself and saw them ramp up during her time as secretary of state. In her book Hard Choices, notes that drone strikes are “one of the most effective and controversial elements of the Obama Administration’s strategy against al Qaeda and like-minded terrorists.” She has also pinned herself to Obama this election cycle, painting her candidacy as a continuation of many of his policies, signaling little incentive for her to change our approach to drone strikes now.

Finally, there’s Republican nominee Donald Trump, who has expressed a desire to expand the military and kill innocent people in order to combat terrorism. As Glenn Greenwald notes, these views are not necessarily extreme relative to current U.S. foreign policy under President Obama: The Intercept reported that nearly 90 percent of people killed in drone strikes in Afghanistan over a five-month period “were not the intended targets”.

In 2014 Pew released a global poll that found that majorities in 39 countries disapproved of American drone attacks. The only three countries that showed more than half of respondents supporting the tactic were Israel, Kenya and the U.S.

Nowhere did any level support match the level of opposition found in countries such as Venezuela and Jordan, where disapproval topped 90 percent. Some of the places polled where the majority disapproved of strikes included our allies such as South Korea, Japan, the UK, and France.

Given the negative view of drone attacks aboard, the large number of innocents killed, and the secretive nature of the program driving them, it’s surprising that candidates come under so little scrutiny for supporting the practice — and, perhaps, that they ever supported it in the first place.

Photo: A fully armed MQ-9 Reaper taxis down an Afghanistan runway Nov. 4. The Reaper has flown 49 combat sorties since it first began operating in Afghanistan Sept. 25. It completed its first combat strike Oct. 27, when it fired a Hellfire missile over Deh Rawod, Afghanistan. U.S. Air Force photo/Staff Sgt. Brian Ferguson