To AIR is Human; Is to Spy Divine

Privacy is a huge deal and perhaps an elusive and fading possibility. Digital communications are a battleground, from social media posts to personal texts, phone calls and emails. Hacking has unveiled the most personal of details. DNA analysis – even based on close relatives with similar configurations – has solved cold cases as our collective, often unconsenting, databased expands. Government and corporate fileservers have aggregated so much personal information, expanding every day. Government agencies, in particular, know so very much about most of us.

Legislatures and courts have limped along, struggling again First and Fourth Amendment requirements and the reality of modern linkage instantly manipulated by sophisticated programs driven by self-learning artificial intelligence: privacy automatically and systematically revoked. Our judicial system strains to find containment, based on the Fourth Amendment restraint on unreasonable searches and seizures, of government efforts to control, observe, pry, categorize and “fight criminal activity.” Private intrusion is even more clearly unrestrained. Government has greater means to intrude.

For example, in a very narrow 5-4 2018 decision, the U.S. Supreme Court ruled in Carpenter vs The United States that police generally need to get a warrant supported by probable cause before obtaining cellphone location data. Chief Justice John G. Roberts Jr. wrote in the majority opinion stating: “Given the unique nature of cellphone location records, the fact that the information is held by a third party does not by itself overcome the user’s claim to Fourth Amendment protection.” Great, a very narrow decision before the current conservative reconfiguration of that court. What do those changes portend?  And while digital technology is pushing hard at the dam wall of privacy, other forms of government technology-driven intrusion abound.

Noisy helicopters crowd urban skies. News services. Upscale transportation. Police surveillance. Sophisticated cameras with amazing tracking ability, able to observe rather small and distant details, replete with major night vision capabilities. But wait, there’s more: much quieter, with even more technologically sophisticated cameras, drones. Police drones. Federal agency drones. Even nasty private drones. 

In a case heard before the U.S. Fourth District Court of Appeals (with jurisdiction over Maryland, Virginia, West Virginia, South Carolina and North Carolina), an en banc court (a full judge panel) addressed the City of Baltimore’s use of drones generally to scan city streets looking for possible criminal activity. In a very narrow 8 to 7 result on June 24th, suggesting perhaps a reversal in a more conservative Supreme Court, the Fourth Circuit applied the above Carpenter ruling to hold that this generic drone scanning constituted an unreasonable and thus unconstitutional warrantless search.

“The program was known as the Aerial Investigation Research program, which is shortened to AIR… The planes conducted surveillance in Baltimore using high-tech cameras to record ‘the movements of a city,’ the majority said. Aerial photography was used to track movements of people and vehicles in connection with serious crimes.

“Chief Judge Roger Gregory wrote the majority opinion, joined by seven justices, and also a concurring opinion that addressed dissenters’ arguments, joined by three justices in the majority. Gregory is an appointee of former President Bill Clinton.

“‘Because the AIR program enables police to deduce from the whole of individuals’ movements, we hold that accessing its data is a search, and its warrantless operation violates the Fourth Amendment,’ Gregory wrote in the majority opinion.

“The plaintiffs challenging the program are entitled to a preliminary injunction, he said… The surveillance was part of a pilot program that has since been shut down because of a public outcry. The police department retained data relating to specific investigations, so the appeal is not moot, Gregory said.” Debra Cassens Weiss writing for the June 24th Journal of the American Bar Association.

We live in a world where disinformation reigns supreme, conspiracy theories spread faster than the pandemic imbued with the false “credibility” of repetition and where intensely private information seems to be there for the taking by unscrupulous public and private operatives. We are at each other’s throats, trust has left the building, and it seems like every person is now for him or herself. Can democracy survive intrusive technology, a tsunami of falsehoods and the inability to protect individual privacy?

I’m Peter Dekom, and in a litany of self-serving and often selfish acts, public and private, we are constantly chipping away at the fabric of our system of government, where each individual violation of these basic values slowly contaminates and erodes our liberty.