Fourth Circuit Rules Baltimore’s Aerial Surveillance Program Unconstitutional | Hacker News Reader

Fourth Circuit Rules Baltimore’s Aerial Surveillance Program Unconstitutional

eff.org

17 pointsloteck10 comments

For all the frequency I hear that "privacy is dead" or that "there is no expectation of privacy in public," we're constantly reading evidence to the contrary.

If you're such a person who despairs about privacy in that kind of way (I respectfully refer to all such folk as "privacy fatalists"), I wonder whether legal decisions such as this stir up your assumptions a bit? Don't you wonder if the future is actually one where, to borrow a quote from a famous legal decision, "the Fourth Amendment protects people, not places"?

As long as the third-party doctrine exists along with privatization of surveillance, "privacy is dead".

To your point, the third party doctrine is on the ropes and many believe a change is coming soon from SCOTUS, by indication of their own recent decisions adjacent to that issue. [0]

I think maybe we have quite different definitions of "dead"!

[0] https://www.eff.org/deeplinks/2020/11/podcast-episode-fixing...

It sounds very much like winning a battle, but still losing the war.

In the EU we have at least some legal framework for protecting privacy (probably due to our experiences in WWII). Unfortunately, it seems there is not really something similar in the US.

> For all the frequency I hear that "privacy is dead" or that "there is no expectation of privacy in public," we're constantly reading evidence to the contrary.

No we aren't. What we actually see is policing agencies continually finding new ways to abuse privacy, doing those things for half of a decade or more at great public expense, and then moving on to other new ways to abuse privacy, rinse and repeat. What we actually see is policing agencies all over the country instituting intensely invasive policies without concern, and then each individual case has to be struck down one-by-one slowly over long periods of time because first the programs need to become public, then they need to work their way through the courts, then they need to go through appeals and more appeals and more appeals. And in the meantime similar programs in other cities are legally unchallenged because none of this establishes very broad rules for what surveillance behavior is allowed.

This program has been publicly in place since at least 2016 and it took until now for the reactive legal process to stop it in one city.

As long as the process for ensuring privacy continues to be reactive and slow moving at the fringes rather than proactive at the root, we will not have meaningful privacy.

You're essentially arguing that legal precedents against any government behavior at all are ineffective and pointless.

Or do you believe 4th amendment issues are somehow unique in this regard relative to other civil rights?

None of these cases establish rules delineating what behavior is allowed vs not allowed populationwide, nor do they ever establish any punishment for constitutional violation. They only say that a very specific collection of behaviors can no longer be performed all at once by the same group on a very specific group of people for a very specific period of time. And none of them prevent policing agencies from just doing it again and again and waiting out the legal challenges each time. Ok, so 45 days is too much in this particular case. The next program will spin up recordings for 35 days and run for another 6 years and try again. Or they'll use wifi beacons on street lights instead of aerial cameras and the details will be different requiring a new set of legal processes.

Cops don't care if it gets challenged in court because they're not paying the court fees. The public is. They get their inflated budgets regardless with zero consequences.

Chipping away tiny fragments of a growing lava flow long after they cool is not my definition of progress.

We've had ~250 years of time for so-called "progress" since the establishment of the fourth amendment, and several decades since global adoption of a public internet. Do you feel like the government has more information about you today, or less? Why?

Not particularly. It's an isolated data point; an outlier. I haven't read the court opinion, but the EFF's take isn't exactly spirit raising. They ruled it unconstitutional because the retention period was long enough that you could easily build a detailed ledger of where everyone has been. That seems to implicitly allow surveillance networks, so long as they don't keep the data for very long, or if it's more than trivial to track an individual.

More broadly, there still seem to be no penalties (either for doing something that should be obviously illegal, or for lying to the court in earlier statements). We've locked a door, but we haven't closed the windows.

> Don't you wonder if the future is actually one where, to borrow a quote from a famous legal decision, "the Fourth Amendment protects people, not places"?

That quote doesn't particularly help your case. Katz won that argument under the logic that physical intrusion was unnecessary. Yet here we are, over 50 years later, doing very similar things in slightly different ways. In a just world, this aerial surveillance program never would have gotten off the ground. Like I said before, we closed the door but nobody shut the windows. Until there are some actual penalties, vendors are going to keep crawling in through the window and opening the door with slightly different variations of technology that haven't been explicitly banned yet.

It also doesn't fill me with hope that we draw the line at some 1984-esque individual tracking system. "Oh, sure, you can track everyone. As long as there's a modicum of effort to tie the records to an individual, you can track whatever you want." "Modicum of effort" usually means you pay a vendor for software to do it, and then don't tell anyone about it so they don't realize how easy it is to do. If people find out, they tell you not to do it again and life goes on. There's no motivation to avoid things that might be a 4th Amendment violation.

i mean, thats mostly because the privacy invasion is still topsecret and its abuses likely never investigated hitherto.

but sure

Question for those who have more legal expertise - would this ruling change if the aerial surveillance were limited to just public areas? To me it doesn't seem like there is a reasonable expectation to privacy in public spaces that changes just because of observation over time. Yet that seems to be the line of argument made in this article.

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