By Lyndsay Winkley
The San Diego Union-Tribune
SAN DIEGO, Calif. — For six months in 2020, powerful police spy planes circled Baltimore for 12 hours a day, capturing nearly every movement of the city’s residents.
A group of grassroots community activists sued the Baltimore Police Department over the program. They argued, in part, that the powerful technology violated their Fourth Amendment rights. In other words, if police wanted to collect that kind of information, they needed a warrant.
A year later, a panel of Fourth Circuit judges agreed, saying that because the surveillance program opened “an intimate window into a person’s associations and activities, it violates the reasonable expectation of privacy individuals have.”
In that case, the court ruled the surveillance program went too far. But in an ever-digitizing world, drawing that line can be difficult, experts say.
How many cameras or spy planes or days of cellphone location data does it take to violate the Fourth Amendment, which protects against unreasonable searches and seizures?
And where does the San Diego Police Department’s proposal to install 500 streetlight cameras sit in the broader matrix of surveillance and constitutional rights?
It’s a question several Privacy Advisory Board members asked themselves last month while reviewing the department’s proposal. And it’s a question the San Diego City Council will need to contend with Tuesday when its members decide whether the cameras should be funded and installed.
There are no easy answers.
“The question of how many cameras it takes or how much monitoring it takes… It’s difficult to know what the line is before courts draw it,” said Matthew Tokson, a University of Utah law professor who specializes in the Fourth Amendment. “I think the question the courts are going to ask themselves is how pervasively does this allow the police to track, say, an innocent individual they happen to be interested in.
“How much can they really tell about their life?”
The proposal
In March, the San Diego Police Department proposed installing a network of cameras equipped with automatic license plate readers across the city — from Rancho Bernardo in the north to San Ysidro in the south.
The highest concentration of cameras would be in District 8, which includes the communities of Barrio Logan, Logan Heights and Otay Mesa, and District 3, which encompasses Hillcrest, North Park and downtown San Diego.
Police officials say the cameras will be installed in public places, where there is no expectation of privacy, and will not be monitored in real-time. And they will only be accessed to investigate serious crimes or incidents.
The cameras would also be outfitted with automated license plate readers, which would capture the plates of vehicles as they pass by, note when and where they were seen, and then run that information against a variety of law enforcement databases.
License plate readers are used in several nearby cities, including Carlsbad and Chula Vista, but if San Diego’s camera network moves forward, the city would become the largest in the country to use cameras and plate readers as part of a single network, police officials have said.
“Smart streetlights solve some of the most heinous crimes like murder, some of which would go unsolved in the absence of the technology,” said San Diego police acting Capt. Charles Lara. “It’s a tool for crime victims and an accountability tool for offenders.”
The question of whether smart streetlights present a Fourth Amendment concern has been looked at before.
In 2016, council members signed off on a $30 million project that pledged to use 3,200 energy-saving smart streetlights to assess traffic and parking patterns throughout the city. What the public didn’t know — and wouldn’t know for years — is that the technology came with cameras that could be accessed by police.
The resulting outcry — based on concerns about privacy and equity — led San Diego to shut down the network and fueled the creation of a surveillance ordinance that would govern the use of smart streetlights and similar technologies.
Last year, the County Grand Jury looked into the program and determined that the old network didn’t “present any abuse of privacy issues.”
Lara said the department’s current proposal — 500 cameras spread out across San Diego’s 372 square miles — doesn’t reach a level of pervasiveness that would violate the Fourth Amendment.
“That’s always the tension, how much is too much,” he said. “I think we have an understanding that 3,200 cameras is not there quite yet, and we’re not close to 3,200.”
The pushback
Over the last few months, critics and privacy advocates have questioned many aspects of the police department’s streetlight proposal.
When the Privacy Advisory Board voted last month to recommend that the City Council prevent the program from moving forward, board members said the department hadn’t provided enough information about various aspects of the plan, how data would be collected and safeguarded, who would have access to the information gathered, and how the effectiveness of the technology would be assessed.
Concerns over Fourth Amendment violations were also high on the list.
“Both the United States and California Supreme Courts have recently confirmed individuals have reasonable expectations of privacy in the totality of their movements in space and time as captured by sophisticated, networked, AI-enhanced technologies,” the board wrote in a memo outlining its reasons for voting against the project.
Cid Martinez, a Privacy Advisory Board member and an associate professor at the University of San Diego, has brought up several of those cases in past meetings.
In United States v. Jones, the U.S. Supreme Court ruled that police violated the Fourth Amendment rights of Antoine Jones when they installed a GPS device on his wife’s car without his knowledge — and without a warrant — to track him. And in Carpenter v. the United States, the high court ruled the government needed a warrant to access a person’s cellphone location history.
Martinez argued that the department’s proposed network could offer similar tracking capabilities and thus impose on someone’s constitutional rights.
“It’s a network of cameras that can look at people over space and time,” Martinez said. “And it is also able to record a level of detail that you wouldn’t normally have while viewing someone in public.”
Tokson noted that, in both of those Supreme Court cases, police were able to use the information they gathered to paint a nearly complete picture of a person’s movements. In the Carpenter case, police obtained more than 120 days worth of cellphone location data, tying him to a series of robberies. In the Jones case, the GPS device tracked Jones’ wife’s car 24 hours a day for four weeks, leading to several charges against Jones, including conspiracy to distribute drugs.
Tokson said it’s hard to tell whether 500 cameras in a city the size of San Diego could achieve that same level of pervasiveness.
Courts across the country will undoubtedly continue to look at cases where technology and the Fourth Amendment intersect, and with each ruling, the legal landscape will become clearer, Tokson said.
But Martinez worried that those legal precedents will be outpaced by the swift development of technology.
“We’re in this kind of purgatory, this kind of gray area, between the technology and the law, and if cities aren’t careful, it’s very easy for this kind of technology to be implemented and to go unnoticed until the consequences are detrimental to people’s rights,” Martinez said.
Lara stressed that as the law changes, so does the Police Department. He cited cellphone searches as an example.
Previously, police departments were allowed to search the phone of a person who had been arrested without a warrant.
But, in 2014, the U.S. Supreme Court ruled that because of the type and quantity of personal information stored on modern cellphones, a warrant should be required to search them, just as one is needed to search someone’s home.
The ruling actually stemmed from a 2009 arrest made in San Diego’s southeastern neighborhood.
“That case is within recent history and it shows as the laws change, the police must and will and should adapt,” Lara said.
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