Brief Of Amici Curiae Electronic Frontier Foundation, Brennan Center For Justice, Electronic Privacy Information Center, Freedomworks Foundation, National Association Of Criminal Defense Lawyers, And Rutherford Institute In Support Of Plaintiffs-Appellants’ Petition For Rehearing En Banc.
Argument: Rehearing en banc is necessary because the panel’s opinion contradicts two controlling Fourth Amendment principles. First, surveillance technologies that collect detailed records about people’s movements, like Baltimore’s Aerial Investigative Research (AIR) program, infringe on individuals’ reasonable expectations of privacy. Second, the “special needs” exception to the warrant requirement does not apply where, as here, a police surveillance program serves only as a law enforcement investigatory tool. Rehearing is also warranted by the important technological and social aspects of this case. Baltimore’s AIR program comprehensively tracks the movements of a half-million people as they travel throughout the city, and it is integrated into the city’s vast surveillance camera and automated license plate reader (ALPR) networks. Other vendors are following AIR’s maker, Persistent Surveillance Systems (PSS), into this new market for advanced police aerial surveillance technologies. These police “eyes in the sky” chill free speech and assembly in public places, raising serious First Amendment concerns. This case also exemplifies the disparate burden of government surveillance borne by communities of color—a problem described as “the color of surveillance.” Police experiment with, and eventually deploy, intrusive technologies like the AIR program in cities with large communities of color. Before Baltimore, PSS operated surveillance flights above Compton, California; Philadelphia, Pennsylvania; and Dayton, Ohio. The company also seeks to conduct surveillance of St. Louis, Missouri. Further, authorities have routinely deployed aerial surveillance technologies against individuals participating in racial justice movements, like those protesting against the police killings of George Floyd in Minneapolis, Michael Brown in Ferguson, and Freddie Gray in Baltimore. The combination of these racial disparities and the novel surveillance technique at issue here thus justifies rehearing this case en banc. And the legal errors in the panel’s opinion require it.