By Jay Stanley, ACLU Senior Policy Analyst

For activists across the country who have taken to the streets to demand racial justice and police accountability, the sound of protest has been not just the sound of chants, but the sound of helicopters. For many police departments, these protests have been an occasion to bring out all their high-tech toys, and those include surveillance aircraft, ranging from police helicopters to fixed-wing surveillance aircraft to drones. Like all expensive law enforcement practices, police aerial surveillance should be questioned and reevaluated as part of a broader divestment from police in the United States. That is doubly true considering the powerful new surveillance technologies that will increasingly be put into the skies above American cities and towns — if nothing is done to stop them.
 
Last week, U.S. Customs and Border Protection (CBP) was discovered flying a large, high-altitude Predator drone above Minneapolis. CBP has no business deploying military-grade drones — authorized by Congress for border patrol — over domestic political protests, and these drones should not be flying over Minneapolis, or any other U.S. community. Such flights raise questions about the lack of transparency (we don’t know what kinds of equipment the agency had on board), the lack of privacy protections (CBP being a troubled agency with a particular absence of institutional respect for privacy), and mission creep.
 
The Minneapolis large-drone deployment was especially ominous because it involved surveillance of people protesting police abuse — but it’s just the tip of the iceberg. CBP is the only non-military agency that has received permission from the FAA to fly large drones at high altitudes, but it frequently lends out its Predators to other agencies for uses ranging far afield from CBP’s border mission — and from the border. The defense contractor General Atomics is carrying out tests of a similar drone flight over San Diego this year.
 
Of course, surveillance abuses can come not just from drones but also from piloted aircraft. In 2004, for example, a New York City couple was filmed having sex at night on a pitch-black rooftop balcony — where they had every reason to expect privacy — by a $9.8 million NYPD helicopter equipped with night vision that had been deployed to monitor a nearby bicycle protest. Rather than apologize, NYPD officials flatly denied that this filming constituted an abuse, telling a television reporter, “This is what police in helicopters are supposed to do, check out people to make sure no one is . . . doing anything illegal.”
 
More recently, we have seen piloted airplanes used for long-term, mass surveillance over the entire city of Baltimore using wide-area motion imagery. This is just the latest surveillance technique to be deployed against communities of color, and is a clear violation of residents’ constitutional right to privacy. A historic legal battle over the program is now underway as the result of an ACLU legal challenge.
 
The FBI also regularly flies “a small air force” of surveillance aircraft above American cities — including over protest marches such as those in Ferguson, Missouri and in Baltimore following the 2015 death of Freddie Gray in police custody. The planes are typically registered to front companies to hide their identities as government planes. In addition to the CBP drone in Minneapolis, the Department of Homeland Security deployed piloted surveillance aircraft over George Floyd protests in Washington, D.C. and 13 other cities, sending video to a centralized CBP facility, letting federal agents view live aerial footage on their phones, and storing the footage for potential use in criminal investigations.
 
Ultimately, the answer is for communities — and the federal government — to put in place strong privacy protections that apply equally to drones and piloted aircraft.
 
Today, police helicopters — which first appeared in the late 1940s — have become a well-established law enforcement tool in many cities. Police helicopters and fixed wing aircraft are used for a variety of purposes including patrol, pursuit, search and rescue, and surveillance.
 
But police helicopters are also used to intimidate through a militaristic display of raw power. That role was epitomized by the use of a military Blackhawk helicopter last week to disperse peaceful racial justice protesters in Washington, D.C. by hovering low over a street, creating wind gusts strong enough to snap tree limbs. Experts call this tactic a “show of force” and say it’s a common military tactic to “intimidate and remind potential enemies of your armed presence.”
 
Beyond such a clearly abusive deployment, however, even civilian police helicopters can have a similar effect. Police helicopters — many of which are military surplus aircraft — are large, loud machines, heavily associated with military weaponry and which, by virtue of their position in the sky, signify surveillance, dominance, and control. In at least some places they are consciously used by police for the purpose of deterring crime — which might sound like a good thing until you pause to reflect that they do so by making all residents of certain neighborhoods feel as though they are being watched by an overpowering occupying force. And those neighborhoods aren’t affluent white ones.
 
American communities should take a hard look at their police departments’ aerial surveillance programs as part of an overall reassessment and divestment from law enforcement. How beneficial are they really for the community as a whole? Are their benefits proportional to their cost — including the opportunity cost of underfunding social programs to support expensive aircraft? To what extent are they used in positive ways such as for search and rescue, compared to negative ones such as “dominating” people exercising their First Amendment right to peaceably assemble? Do they fit into positive community visions that stress support, uplift, and assistance, rather than the harsh hammer of a militarized enforcement approach?
 
For many communities, the answer will be no, and those communities should end their aerial surveillance programs. Maybe others will decide to allow their law enforcement departments to retain aerial surveillance capabilities — but those should be re-focused, regulated, and scaled back.
 
Regulations should ensure transparency so communities can decide for themselves what kind of surveillance the police departments that serve them are deploying. For no justifiable reason, CBP refused to say what agency it was flying its Predators over Minneapolis on behalf of and whether it was a federal or state agency. (The New York Times reported weeks later that it was for a branch of Immigration and Customs Enforcement.) We also don’t know what kinds of surveillance technologies those drones are carrying. The U.S. House of Representatives has launched an investigation into the case, but shouldn’t take a congressional investigation to get such information.
 
The privacy protections for all aerial surveillance that we think are necessary (which we have previously laid out with regard to drones) would not allow for aerial mass surveillance of any kind, including wide-area surveillance and the use of Dirtboxes — electronic dragnets that sweep up people’s cell phone data. In general, communities should engage in careful monitoring and regulation of the devices that are installed on law enforcement aircraft. Police also shouldn’t be permitted to engage in suspicionless aerial surveillance — flying around aimlessly looking for trouble based on the hunches or curiosity of their pilots, or for any other form of patrol. Where aerial surveillance is used it should be carried out only in emergencies, for specific purposes that don’t implicate privacy such as accident- or crime-scene photography, or where there are specific and articulable grounds to believe that the aircraft will collect evidence relating to a specific instance of criminal wrongdoing (preferably through a warrant requirement as in some states such as Minnesota).
 
Law enforcement will argue that it needs aerial surveillance to achieve “situational awareness” across large areas during times of civil unrest and/or large protests. Communities should do a hard examination of that claim. Just how often does law enforcement have a legitimate need for that kind of surveillance? Can the aims of such flights be achieved through ground observations or other techniques that have lower costs, fewer chilling effects on protest, and less risk of lending themselves to abusive surveillance? If and when there is a genuine need for aerial surveillance, are high-tech surveillance devices necessary, or can that need be met through plain-view visual surveillance? And how much is the community paying for what is most likely a rarely-needed capability?
 
Good privacy protections are especially important given the futuristic surveillance devices that are now available. Drones and other aircraft are a platform — one that can be used to carry any number of other technologies up into the sky. Among the sensors they can carry are GPS, radar, range-finders, magnetic-field change sensing, sonar, radio frequency sensors, and chemical and biochemical sensors. They can carry Lidar, which can be used to see through some barriers such as foliage and for such functions as change detection, in which even small changes in a landscape, such as tire tracks, are automatically flagged. And of course, aircraft can carry all kinds of cameras, including super-powerful gigapixel lens arrays that can sweep in enormous areas, and infrared sensors that “see” beyond the visual part of the electromagnetic spectrum.
 
Perhaps most significantly, camera footage and other data can increasingly be analyzed using face recognition, license plate recognition, and other artificial intelligence techniques that promise to supercharge the analysis of datasets that are too large for humans to reasonably review. That’s not even counting whatever technologies may be developed in the future.
 
Given the role that aerial surveillance has played in the George Floyd and other protests, as well as the tsunami of new aerial surveillance technologies that are coming our way, such capabilities should be part of the conversation over police divestment that the recent protests have sparked.

By Brian Hauss, ACLU Staff Attorney & Teresa Nelson 

As people take to the streets to demand justice for George Floyd, Breonna Taylor, Ahmaud Arbery, Tony McDade, and too many other Black people who have been killed by police in recent years, journalists have joined them to bear witness. While covering these protests in cities throughout the country, journalists have become conspicuous targets for arrest, intimidation, and assault by police officers, even though (or perhaps because) they are clearly identifiable as members of the press.

These apparently deliberate attacks on journalists violate the First Amendment freedom of the press, and they will not go unanswered. The ACLU of Minnesota is filing a class-action lawsuit against Minnesota’s state and local law enforcement officials to ensure that police officers who target journalists are held fully accountable for their unlawful actions.

We also plan to protect another of our essential First Amendment rights: the right to protest. We’re pursuing legal actions to stop police brutality against protesters and organizers.

Throughout the George Floyd protests, there have been numerous, well-documented instances of deliberate abuse against journalists by law enforcement officers. A Minnesota State Patrol officer arrested CNN correspondent Omar Jimenez and his crew during a live broadcast, despite the journalists repeatedly having offered to comply with police and asking where they could move. Los Angeles Times reporter Molly Hennessy-Fiske and photographer Carolyn Cole were chased by Minnesota State Patrol officers, tear-gassed, and shot at with rubber bullets, even though both were wearing their press credentials and they identified themselves as journalists. And police officers pepper-sprayed a group of visibly credentialed journalists, including KTSP reporter Ryan Raiche and his producer, as they were pinned against a wall.

And these are examples from Minnesota alone. The Reporters Committee for the Freedom the Press and the U.S. Press Freedom Tracker have identified numerous other instances of official abuse against journalists in cities across the country

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These attacks violate the press’s clearly established First Amendment right to report on public protests and police activities. An open society depends on a free press to keep the public informed and to bear witness to government actions. When law enforcement officers target members of the press with impunity, they strike at the root of our democracy. Law enforcement officers who perpetrate these abuses must be held accountable for their actions to the fullest extent of the law.

Unfortunately, as in so many other cases, senior law enforcement officials have refused to take action in response to flagrant abuse. They have failed to establish necessary guidelines, trainings, and disciplinary protocols to ensure that attacks on journalists are treated with zero tolerance. Instead, they have made excuses and ducked responsibility, such as when the Minnesota State Patrol claimed that they released Mr. Jimenez and his crew “once they were confirmed to be members of the media” – even though that fact was obvious before the arrests took place.

If the government refuses to hold its officers accountable for their unlawful actions, we will. This lawsuit will be the first of several we intend to file in states across the country. We will not rest until the press is once again free to report the news without fear or favor.

By Leila Rafei, ACLU Content Strategist

The COVID-19 pandemic has changed the way the world operates, but as the presidential election approaches, many states have failed to respond when it comes to voting. The safest way to vote during the pandemic is to vote by mail, but state restrictions block many voters from doing so. The ACLU has sued 10 states for restricting access, including Missouri, where the state legislature just voted to expand access in 2020. While the Missouri legislature win was a major step toward progress, the state is still restricting access by requiring most voters to notarize their mail-in ballots — which means they have to violate social distancing recommendations to vote by mail. 

The ACLU is fighting the notarization requirement on behalf of voters like Cecil Wattree and Javier Del Villar — two Missourians who joined the original lawsuit because they wanted to exercise their right to vote by mail. Cecil, Javier, and fellow Missouri voter Kamisha Webb shared their stories with the ACLU to show why voting by mail should be accessible — and safe  — for all. 

Vote by mail to protect Kamisha

For Kansas City resident Kamisha Webb, going to the polls could put her life in jeopardy. Kamisha has asthma and a condition called hereditary angioedema, which requires her to use a nebulizer machine, various medications, and biweekly injections to manage her health. A cold or flu could land her in the ICU. Contracting COVID-19 could be fatal.

Kamisha is doing everything she can to be safe. She stays at home on paid leave from her job because teleworking isn’t an option. She talks to her grandmother virtually, despite wanting to see her in person. But she’s worried she may not be able to take similar safety precautions when it comes to voting. 

“I feel like I have to choose whether to exercise my right to vote, or risk putting my life on the line,” she tells the ACLU. “And no one should have to mix the two, ever.”

Kamisha first learned about absentee voting when she overheard people signing up at a polling place during the 2018 midterm election. She learned that it was an option for people who are sick, for example, or have a disability that hinders their ability to vote in person. 

“I just thought, wow, that’s so cool to have a process in place for individuals to still vote if they’re not able to physically go to the polls,” Kamisha tells the ACLU. “It would be wonderful if we could take that same idea and make an exception due to COVID-19. Whether or not someone has a health condition, we have a deadly virus on the loose. We should all have the right to not only vote, but to be safe in doing that.”

People of color will likely be harmed most by restricting access to voting by mail. Voter suppression efforts already target people of color nationwide, and COVID-19 disproportionately affects people of color, particularly the Black community, to which Kamisha belongs. She attributes this to the prevalence of underlying health conditions, lack of access to health care and insurance, and discrimination in medical care. On the higher death rates in the Black community, Kamisha is “saddened, but not surprised.”

Kamisha joined the Missouri lawsuit not only because she is at risk, but because she believes everybody should be able to vote by mail during the pandemic. If the court rules in her favor, she says she will be overcome with joy: “I’m kind of filled with emotion just thinking about it.”

Vote by mail to protect Cecil’s daughter

By the time she turned eight, Cecil Wattree’s daughter, Allyn, had gone through open heart surgery, multiple strokes, was placed on a ventilator, and was on a waiting list for a heart transplant — among other ailments and surgeries resulting from her being born with hypoplastic left heart syndrome. 

“It’s a gift of God that she recovered to the point where she is able to function,” says Cecil. “But it still leaves her immunocompromised when it comes to her lungs and her heart.” That makes Allyn high risk to COVID-19. When the ACLU sued Missouri, he joined the lawsuit, explaining, “I’m in a unique position to be able to advocate for my daughter.”

Cecil constantly worries about exposing his daughter to the virus, especially because he still has to go to work at a primary care clinic. The clinic has taken precautionary measures, and Cecil is being “super hyper vigilant” at home because of his daughter. 

“When I come home, I have to pretty much take all my clothes off in the garage or the cellar and then run into the bathroom and take a shower before I even see Allyn,” says Cecil. “Even after that, it’s a struggle to be safe when you have a highly affectionate eight year old who wants to be in your arms. I always worry that I might have encountered the virus in some way.”

It doesn’t help that as a Black man, Cecil has to navigate a world where his race directly impacts his ability to stay safe. He thinks twice about visiting a store wearing a mask in a white neighborhood. And he’s seen discrimination in medical care firsthand with his own daughter: “When Allyn had a stroke, the doctors didn’t believe she had one, even though she showed symptoms. I had to advocate so hard just to get them to look at her and give her a CT scan.” 

He worries about what this means when it comes to COVID-19, which has symptoms similar to the flu or cold: “How am I going to get them to take it seriously?”

Cecil wants to be as safe as possible and vote absentee in November — but having a vulnerable daughter, being Black, and being an essential worker doesn’t make you eligible in Missouri. 

“A lot of people have fought and died for my ability to vote,” says Cecil on why voting is so important to him. “Being able to vote by mail would give me a sense of protection while also ensuring that I can exercise my right to have a say in the direction this country’s going.”

No matter the outcome of the lawsuit, however, Cecil knows he’s privileged to have the option to vote in person when it comes down to the wire. “There are people who have no availability, no transportation, whose health is already compromised. To tell them to social distance while not allowing their voices to be heard is to take advantage of the current situation to suppress voters.”

Vote by mail to protect Javier’s community

As a 29 year old without pre-existing medical conditions, Javier is not considered by the CDC to be high risk to COVID-19. But Javier works for the national delivery service, making him an essential worker who comes into contact with the whole community on a daily basis. 

“In delivery, I feel like I’m helping people get what they need, because we do a lot of medical supply deliveries,” says Javier. “So it feels good. At the same time, it feels uncomfortable just knowing that the people receiving those deliveries are often out of work, while I am working.”

While millions of people have lost their jobs in the past few months, Javier’s work has gotten even busier, with longer hours and more packages delivered each day. He calls it “Christmas volume.” Due to stay-at-home orders in the community, he’s also encountering more people when he delivers packages to their homes. Often, they want to come out and talk to him. “You really get the vibe that people just want to talk and see someone and interact,” he says. 

He’s noticed a range in responses to COVID-19 safety measures in the people he encounters.

“Some customers wave through their window and then will come out with a bleach bottle and spray down the package I just left at their door. Parents will yell at their kids to not touch the package if they come running out. And then there are some people who will just pick up the package and take it inside like it’s any other day. Everyone’s handling it differently.”

Javier can’t control what others do, but he takes his own precautions like wearing latex gloves while working, even though it’s not required by his job. When a customer wants to chat, he tries to keep his distance. If he comes down with symptoms similar to COVID-19, like he did in March, he stays home. Javier does what he can to stay safe in all areas of his life, so he wants to do the same when it’s time to vote in November. 

He knew voting by mail would be the safest way to vote during the pandemic, but he was surprised to find out how restrictive Missouri’s absentee voting criteria are. He says it’s a concern for the people he encounters on his delivery route, too. 

“I’ve talked to a good amount of people about it within the last two weeks,” he explains. He thinks that people will be more likely to vote if they can do it from home with an absentee ballot — especially considering the pandemic. 

“Voting is a basic, fundamental part of a democracy and it needs to be viewed more as a celebration and an essential part of every American’s duty if you will, to vote or not vote, but it still should be looked at as like a national holiday.”
 
“I picture Missouri at the forefront of changing ideology in the United States,” says Javier. “If we’re able to do something progressive in Missouri, I think the rest of the country would be able to see that as a positive thing.”

The stories of Kamisha, Cecil, and Javier show why voting by mail is a necessary option for everyone, regardless of their circumstances. There have been bipartisan efforts to expand access to vote by mail in states including Alabama, Indiana, New Hampshire, New York, and West Virginia. States should take additional measures, such as expanding early vote periods, preparing for a surge in absentee ballots, and doing away with unnecessary requirements like getting a witness signature or having to pay for postage. At the same time, states must ensure safety for those who choose to vote in person as well as poll workers. Nobody should have to risk their health to vote. 

For information on how to vote by mail, see the absentee voting guide.