By: Yakira Price*

Introduction

It was a typical Wednesday morning and Baltimore City Police Officer Smith had just sat down at his desk.[1] Officer Smith had been tasked with investigating a string of package thefts across the city. His fellow officers had already identified a suspect but were unable to make contact with him. Officer Smith was hoping to get in touch with the suspect’s cousin, John, to learn more information about the suspect’s whereabouts. Unfortunately, no one knew where John was currently living. It was Officer Smith’s job to find him. Officer Smith uploaded an image of John’s driver’s license to the police department’s image database and pressed “find a match.”[2] Within seconds, Officer Smith’s computer screen was flooded with millions of images and videos of John from the past year. Unbeknownst to John, he had been recorded. There were videos of him going out to eat with his family, taking out his trash, and walking his dog. Officer Smith began clicking through the images and jotting down notes to create a map of John’s movements, hoping to identify John’s current residence.

Officer Smith’s search results may seem extreme, but they are not. Technological growth, in areas such as surveillance, home security, and facial recognition, is affecting society’s understanding of privacy in a way that poses a threat to individual privacy rights under the Fourth Amendment of the United States Constitution.[3] With the type of technology that is becoming increasingly available to law enforcement, innocent people may become more susceptible to invasive searches like the one conducted by Officer Smith.  This Comment addresses the concern that Maryland’s laws are inadequate and expose individuals to privacy concerns triggered by the rise in home security camera installation, homeowner cooperation with law enforcement agencies, and facial recognition technology development.

Part I of this Comment serves as an introduction to individual privacy rights under the Fourth Amendment and explains the relevant U.S. Supreme Court privacy right jurisprudence.[4] In addition, Part I provides background information on the recent rise in home security installation, existing partnerships between law enforcement agencies and homeowners in the context of home security cameras, and the development of facial recognition technology (“FRT”).[5] Part II of this Comment addresses the existing partnerships between Maryland law enforcement agencies and homeowners, the use of FRT in Maryland, and the current stance of Maryland’s legislature and courts on these issues.[6] Part II also illustrates the potential for law enforcement to aggregate these technologies in a way that threatens privacy protections.[7] Lastly, Part III of this comment discusses Maryland’s proposed and existing legislation that can  further protect citizens’ privacy rights, as well as examples of protective legislation in other states on this topic.[8] Part III will also suggest ways that the Maryland legislature and courts can address this concern.[9] 

1. Focusing In: Law Enforcement’s Use of Video Surveillance and Facial Recognition Technology in The United States
   1. Brief Overview of the Constitutional Right to Move Around Anonymously
      1. The Fourth Amendment Right to Privacy

The Fourth Amendment to the United States Constitution guarantees that the right of all individuals “[t]o be secure in their persons . . . against unreasonable searches . . . shall not be violated . . . .”[10] In its seminal decision, Katz v. United States, the U.S. Supreme Court introduced the reasonable expectation of privacy test.[11] The Katz test analyzes whether a person has a subjective expectation of privacy as well as an objectively reasonable expectation of privacy upon which one may justifiable rely.[12] The Katz majority opined that “[t]he Fourth Amendment protects people, not places.”[13] As most Fourth Amendment violation analyses focus on whether the government erroneously searched a location or item, Justice John Marshall Harlan clarified the majority’s perspective in his concurring opinion.[14]

Justice Harlan explained that an individual possesses a reasonable expectation of privacy when they have a subjective expectation of privacy that society is willing to accept as reasonable.[15] Thus, as Justice Harlan explains, most activities and conversations occurring inside of a person’s home are likely protected by the Fourth Amendment.[16] However, activities and conversations taking place in public are “[e]xpose[d] to the plain view of outsiders [and] are not protected” because that person was not attempting to keep those activities or conversations private.[17] This standard focuses on the reasonability of privacy.[18] Thus, what one “[k]nowingly exposes to the public” is outside of the protection of the Fourth Amendment.[19] Conversely, what one “[s]eeks to preserve as private,” regardless of whether the area is public or not, may be protected by the Constitution.[20]

Katz’s reasonable expectation of privacy test remains one of the leading test for individual privacy rights under the Fourth Amendment, as it provides a medium for understanding the boundaries of an individual’s right to privacy in both private and in public spaces.[21] However, as society evolves and technology develops, the Courthas begun questioning whether the 1967 Katz test is overbroad and should be reconfigured to address modern considerations.[22] In the concurring opinion, Justice Sotomayor lays out the key implications of Fourth Amendment privacy analysis as technology develops.[23] Justice Sotomayor noted, “awareness that the government may be watching chills associational and expressive freedoms.”[24]  Further, Justice Sotomayercautioned that the government’s ability to string together parts of one’s private life is often unchecked and is thereby prone to an abuse of power.[25] The government’s powerful ability may “’alter the relationship between citizen and government in a way that is inimical to democratic society.’”[26] Opinions such as the one expressed by Justice Sotomayor demonstrate the potential weaknesses of the Katz test as modern technology develops and individual privacy expectations evolve.

1. Blurring the Lines of Privacy

In Carpenter v. United States, the United States Supreme Court offered a refreshing stance on digital privacy protection.[27] In Carpenter, the Court demonstrated its willingness to protect privacy rights in the digital age by holding that an individual has a reasonable expectation in their historical cell-site location information (“CSLI”) and the fact that the government obtained the defendant’s CSLI through a third party[28] did not overcome the defendant’s Fourth Amendment protection.[29] In the past, the Court has supported instances of police access to personal information belonging to third parties like banks and telephone companies.[30] In Carpenter, the Court demonstrated its willingness to view certain digital search cases with a different perspective than traditional searches because of the heightened privacy implications.[31] As new surveillance technologies emerge and are subsequently incorporated into policing tactics, the Court’s perspective on digital searches is increasingly relevant.

• Focusing In: Law Enforcement’s Use of Video Surveillance and Facial Recognition Technology in The United StatesThe global rise in home security camera installation

In recent years, there has been a surge in homeowners recognizing the value of adding security measures to their homes, which include home security cameras.[32] According to a report prepared by Grand View Research, Inc. (“Grand View Research”), a market research and consulting company, the global home security camera market was valued at 7.37 billion U.S. Dollars (“USD”) in 2022.[33] The report predicted that this market will grow at a compound annual growth rate (“CAGR”) of 19.2% from 2023 to 2030.[34] Specifically, the North American home security camera market size was valued at 2.99 million USD in 2022.[35] Grand View Research anticipated that the North American market will grow at a CAGR of 19.8 percent by the year 2030.[36] 

This rapid expansion is due in part to the ease and convenience of home security camera installation.[37] Further, security cameras are increasingly available to the modern-day consumer.[38] Security camera systems also offer homeowners high levels of protection from intruders at low costs.[39]  While these benefits drive the market growth and increase the number of home security systems across the nation, homeowners are not the only ones benefitting from the security system installations.  

1. Partnerships Between Law Enforcement Agencies and Homeowners

The ability of law enforcement agencies to utilize technology to advance criminal investigations is not a new concept; law enforcement agencies have long recognized the benefits of mass surveillance technology to maintain crowds and survey illegal activity.[40] In 2015, following the killing of Freddie Gray, the Baltimore Police Department used aerial surveillance technology, facial recognition technology (“FRT”), and other surveillance methodology to track and identify individuals who participated in public protests related to his murder.[41] Just years later, in 2020, the U.S. Department of Homeland Security employed drones and helicopters across various U.S. cities to oversee the protests that ensued following the murder of George Floyd.[42] Although law enforcement agencies have long utilized mass public surveillance technologies, the rising popularity of home security cameras introduces a new level of increased surveillance relied upon by law enforcement.

Between 2015 and 2018, Google’s Nest, which offers an array of home security packages to consumers, reportedly provided customer personal data to law enforcement agencies 300 times.[43] In a transparency report explaining how it handles requests for user information, Nest clarified that it only complies with valid legal requests and is careful to narrow the scope of personal data to only hand over what is necessary.[44] Notably, Nest is not the only home security provider that has partnered with law enforcement agencies in criminal investigations.[45]

Amazon’s Ring, another retailer offering home security devices, has faced scrutiny[46] over the years for its willingness to partner with law enforcement agencies.[47] Neighbors by Ring is an app aimed at promoting security.[48] The Neighbors App utilizes footage from Ring cameras and allows users to post and receive updates on criminal activity from locals in their neighborhoods and public safety agencies.[49] Ring also operates the Neighbors Public Safety Service (“NPSS”), which allows law enforcement agencies to communicate and connect with each other and users via the Neighbors app.[50] Ring has reportedly offered incentives to law enforcement agencies who promote the use of Ring. [51] One of the unique NPSS features law enforcement agencies utilize is the ability to see the location of Ring cameras within their local region and request video footage from those Ring users for the purposes of criminal investigation.[52] Ring and Nest both follow proper legal procedures and only collect video footage with the consent of users or through a valid warrant.[53] However, the practice of handing over user data to law enforcement agencies still has tremendous privacy implications for both Ring and Nest users, and the broader public.[54]

• The Development of Facial Recognition Technology

In recent years, law enforcement agencies have recognized the benefits of using facial recognition technology (“FRT”) in criminal investigations.[55] FRT operates by using two sets of images, typically a still image containing an individual’s face, and a database of still and moving images to match the individual in the original image to the images of individuals in the database.[56] Private companies such as Vigilant Solutions and Clearview AI offer FRT services to law enforcement agencies.[57] In 2021, the Government Accountability Office reported that approximately half of the forty-two federal agencies that employ law enforcement agencies utilized FRT in their practices.[58]

Because FRT offers uniquely precise surveillance capabilities, FRT’s popularity has increased dramatically among law enforcement agencies.[59] The rising utilization of FRT by law enforcement agencies demonstrates the extent of potential civilian surveillance.[60] While this concern exists across the entire nation, Maryland boasts tight-knit partnerships between local homeowners and law enforcement agencies.[61] Further, with the increase in FRT technology, Maryland’s already robust databasing practices have the potential to offer tremendous surveillance capabilities.[62]

1. Focusing In: Concerning Recordation and Databasing Practices Employed by Maryland Police Departments

Maryland law enforcement agencies heavily rely on collected technological data from Maryland citizens to assist them with policing.[63] From there, Maryland police departments can utilize FRT to further policing efforts.[64] Without proper restraint from the Maryland legislature and courts,[65] the practice of technological data collection seriously decreases Maryland citizens’ privacy expectations.[66]

1. Partnerships Between Maryland Law Enforcement Agencies and Homeowners

Homeowners are not the only ones ready to jump on the bandwagon of home security camera installation. Various Maryland law enforcement agencies are taking advantage of the many secured homes in their districts. In July 2022, the Montgomery County Council passed a bill that allows residents and business owners to apply for reimbursement for the cost of their security cameras.[67] In return, police can request video footage from the camera owners.[68]  While this practice is new in Montgomery County, Baltimore City residents have already been utilizing a similar program.

In addition to the hundreds of government operated CitiWatch cameras dispersed throughout public locations in Baltimore City,[69] Baltimore Police Department’s (“BPD”) CitiWatch Community Partnership program (“CitiWatch”) allows local home and business owners to register their security cameras with BPD to support criminal investigations.[70] CitiWatch offers rebates and vouchers to qualifying individuals who register their cameras with BPD.[71] Although BPD cannot access live camera footage, it can request recorded footage from registrants.[72] Registrants are not required to comply with BPD’s request for video footage, but the CitiWatch website makes it clear that “[p]articipants should be willing to work with the City’s public safety agencies, including [BPD], if contacted.”[73] Partnerships like the Montgomery County rebate program and CitiWatch indicate the vast amount of daily surveillance by law enforcement that is taking place on the streets of Maryland. The current state of Maryland’s mass surveillance threatens Maryland citizens’ understanding of privacy. Just as surveillance practices are increasing, awareness of surveillance is increasing as well. As more citizens become aware that they are constantly being recorded, the less claim they will have over their private lives.[74] 

• Surveillance Databasing in Maryland and the Use of FRT: Maryland Image Repository System

With vast amounts of citizen data collected daily, law enforcement needs comprehensive digital databases to efficiently store collected images and videos of individuals for later use in criminal investigations. The Maryland Department of Public Safety and Correctional Services (“DPSCS”) operates a database called the Maryland Image Repository System (“MIRS”) which includes millions of driver’s license photos, mug shots, and other personal images.[75] MIRS is available to various Maryland law enforcement agencies.[76] To varying degrees, these agencies can search MIRS utilizing its facial recognition capabilities to search for suspects.[77] After a tragic incident, MIRS was shown to be extremely beneficial for Maryland law enforcement.

In 2018, MIRS received praise after law enforcement officers captured the shooter in a mass shooting at the Capital Gazette headquarters.[78] Despite the suspect refusing to speak with officers and the police department failing to make an identification based on his fingerprint, officers were able to identify Jarrod Ramos (“Ramos”) as the shooter after feeding his image into the MIRS database.[79] This widely celebrated achievement was not without critique.[80] People voiced various concerns for police use of MIRS following the arrest of Ramos.[81] Firstly, critic expressed concerns that although police was supposed to remove images that were run through the system of suspects who turned out to be innocent, it is unclear whether police is complying with the measure.[82] Further, questions surrounding the accuracy of FRT, specifically when the technology is used on members of minority groups, are plentiful, and answers and data are scarce.[83]

• Current Video Surveillance Laws in Maryland

Even though security cameras are rapidly becoming a key method of citizen surveillance in the United States and around the world, only fifteen (15) states have implemented laws restricting security camera usage.[84] Naturally, each state’s legislation varies in its degree of restrictiveness, but is nonetheless a step in the direction towards promoting privacy.[85] Under the current federal jurisprudence and Maryland legislation, Maryland residents are not receiving protection against law enforcement’s persistent use of mass video surveillance. Article 26 of Maryland’s Declaration of Rights is Maryland’s equivalent to the Fourth Amendment to the U.S. Constitution.[86] It states, in pertinent part, “that all warrants, without oath or affirmation, to search suspected places . . . and all general warrants to search suspected places . . . ought not to be granted.”[87] Although the text of Article 26 does not follow the exact language of the Fourth Amendment, Maryland courts follow the same federal interpretation and application afforded by the protections of the Fourth Amendment.[88]

Maryland’s current Wiretap Statute, with some exceptions carved out for law enforcement, makes it illegal to conduct an auditory recording of other individuals without their consent.[89] However, it is legal to record other individuals with audio so long as the recording occurs in a public space.[90] This is not without limitation though, as it remains illegal to film someone if the camera is aimed inside the private residence of another individual.[91] Although these limitations narrow one’s ability to freely record others in all public spaces, wide range of opportunity still exists for recordation to occur. In the context of home security surveillance systems, under the current law in Maryland, one may record other individuals who enter or pass by their property so long as the camera is not directed towards the inside of another person’s home.[92]

Further, Maryland’s visual surveillance laws offer some protections for individuals in “private places.”[93] According to Maryland Code Section, 3-901, a “private place” is a “[d]ressing room or restroom in a retail” facility.[94] Further, the Code states that lawful surveillance by law enforcement officers in these areas are not prohibited.[95] Other provisions in Maryland’s criminal code pertaining to visual surveillance also construe a “private place” to solely include areas where one would reasonably be expected to undress, such as a bathroom or tanning salon.[96] It is also lawful to place a video surveillance camera on real property so long as the intention is not to film individuals inside a private residence.[97] One may also film the outside of a private residence if the camera is not placed on the property where the residence is located.[98] These laws make it clear that ample opportunity is available to record others without consent so long as the area has not been defined as a private space. Unfortunately, the understanding of private and public spaces has not been redefined over time to reflect the technological advancements that threaten to expand individuals’ understanding of what constitutes a public space. This lack of specificity leads to an increase in surveillance which, in turn, weakens individuals’ Fourth Amendment privacy protections.     

• Maryland Court’s Current Position, Or Lack Thereof, On Citizen’s Privacy Expectations.

Maryland’s General Assembly has chosen to afford Maryland citizens the same privacy rights granted to them by the Fourth Amendment to the U.S. Constitution via Article 26 of the Maryland Constitution’s Declaration of Rights (“Art. 26”). Accordingly, Maryland courts have followed the federal court’s Fourth Amendment interpretation when evaluating possible infringements on citizen’s privacy rights.[99] It is important to note, however, that the majority of Maryland cases applying Art. 26 do so in the context of warrants and search and seizure executions and not consideration of personal privacy.[100] While there are some Maryland cases discussing expectations of privacy, those cases mainly stand for the proposition that one does not have an expectation of personal privacy to be free from a search of someone else’s property.[101] This notion seems self-intuitive and hardly answers the question of where the line of privacy is drawn for Maryland citizens.

• The concerning ability to aggregate collected videos and images.

With little direction from Maryland Court’s detailing the boundaries of privacy rights for Maryland citizens, it is important to consider how this will impact Marylanders as technology develops and surveillance methodology increases. Though the following case, United States v. Tuggle, does not arise out of Maryland, it offers a chilling example of the direction that our privacy rights are headed in.[102]

Between the years of 2013 and 2016, various law enforcement agencies conducted scrupulous investigation into Travis Tuggle (“Tuggle”) for his suspected role in a methamphetamine distribution conspiracy.[103] During this time, three video cameras were installed without a search warrant on utility poles near Tuggle’s home to capture any activity at his residence.[104] Each of these cameras were aimed at the outside of Tuggle’s home and the surrounding areas.[105] These cameras resulted in approximately eighteen months of recorded surveillance of Tuggle’s property.[106] The collected video footage was then used against Tuggle in his criminal prosecution. The footage included depictions of individuals arriving at and entering Tuggle’s home and images of Tuggle carrying items to a shed across the street from his home.[107] Tuggle was subsequently indicted.[108] The Seventh Circuit Court of Appeals affirmed Tuggle’s conviction on appeal.[109]

The court upheld Tuggle’s convictions on the grounds that the video camera surveillance did not rise to the level of a search under the Fourth Amendment.[110] It explained that the government had not invaded an expectation of privacy that society would have accepted as reasonable since the surveillance was conducted in a public area and the technology used was in the hands of the general public.[111] Thus, anyone who passed by Tuggle’s property could have made the same observations as law enforcement.[112] Further, the court reasoned that stationary cameras are not invasive as they only captured a limited amount of a person’s movement and did not inform law enforcement of any of Tuggle’s movements that occurred in areas outside the proximity of his home.[113]

While the case illustrated above involved events occurring outside of Maryland, it is not difficult to imagine the dangers that rulings such as the one in Tuggle pose to individual privacy rights, considering the extensive web of stationary cameras throughout the state of Maryland.[114] As camera installation increases, so does surveillance.[115] With advanced tracking methodology, such as FRT, currently in the hands of law enforcement[116], the ability to track individuals for prolonged periods of time rises as well. All of this complicates individuals’ understanding of privacy under the Fourth Amendment. Perhaps the following case, which arose from events occurring in Maryland, helps to illuminate this point.[117]

In 2016, BPD launched a program using advanced aerial surveillance technology.[118] After the program received tremendous backlash from the community, BPD ceased its efforts.[119] However, BPD relaunched the program in 2019 as the Aerial Investigation Research (“AIR”) Program.[120] The program would have allowed BPD to collect images of Baltimore City via planes and integrate the images with data from other Maryland databases, such as CitiWatch, to advance criminal investigations.[121] In 2021, the Fourth Circuit Court of Appeals granted a preliminary injunction against BPD reasoning that the AIR program was “like ‘attach[ing] an ankle monitor’ to every person in the city.”[122] The court determined that the AIR program violated the Fourth Amendment since it opened “‘an intimate window’ into a person’s associations and activities.”[123] Although the result of this case was that the program ceased and most of the collected footage was allegedly deleted, the practices employed by BPD through the AIR program demonstrate the potential BPD possesses to corroborate its surveillance databases. As described by the AIR program, thecurrent surveillance practices in Maryland potentially broaden individuals’ understanding of public and private spaces and pose a threat to Marylander’s Fourth Amendment privacy rights. With courts still analyzing claims of invasions of privacy under the Reasonable Expectation of Privacy standard,[124] increases in surveillance dangerously blur the lines between public and private spaces. As individuals begin to recognize the increased surveillance and recordation occurring around them, their claim to privacy protections is weakened.[125]

1. Fast-forwarding to the Future: Solutions to the Privacy Right Implications Posed on Maryland Citizens

The Maryland Constitution affords citizens the same privacy rights as the U.S. Constitution’s Fourth Amendment; thus, Maryland citizens face similar concerns under their state laws and protections. It is important to note that even though states are given the latitude to provide their citizens with greater protections than those afforded under the federal constitution, Article 26 does not offer Maryland Citizens greater privacy protections than the Fourth Amendment.[126] Though it is unlikely that Article 26 will be revised, Maryland residents’ expectations of privacy can be protected in the growing digital age by turning to the local legislature and state court to define exactly when and how the government can use such persistent investigative methodology.[127]

1. Changes can be made at the state level regarding the use of FRT

It is apparent that the Maryland Legislature is beginning to recognize the importance of citizen privacy protection. In April of 2023, Senate Bill 192 (“SB 192”), sponsored by Senator Charles E. Sydnor, III, passed its third reading in the Maryland House of Delegates.[128] SB 192 went into effect on October 1, 2023, and added a new subsection to the Maryland Code related to FRT.[129] Though SB 192 attempts to create rigorous boundaries around the use of FRT in criminal investigations in Maryland, it falls short leaving great discretion in the hands of individual law enforcement agencies and judges as to when FRT can be used.[130] Further, SB 192 does not address the vast amount of surveillance occurring in Maryland which threatens citizens’ privacy.[131]

On its face, SB 192 creates strict parameters around the use of facial recognition software by Maryland law enforcement agencies.[132] Most notably, SB 192 prohibits FRT results from being used as evidence in most criminal proceedings and juvenile court delinquency proceedings.[133] In the limited circumstances when FRT can be used as evidence, additional independently obtained evidence is also required.[134] Further, SB 192 only allows FRT to investigate serious crimes or for a compelling need such as identifying a missing person.[135] Importantly, SB 192 also requires the Department of Public Safety and Correctional Services (“DPSCS”) to create training for all agencies utilizing facial recognition software.[136] Any employee of these agencies who personally operates FRT must annually complete DPSCS’s training.[137] Additionally, agencies that use FRT must complete annual audits indicating their compliance with the bill.[138] These agencies must also complete annual reports on their use of FRT.[139] While these new requirements offer some level of protection against the use of FRT, certain aspects of the bill leave important questions unanswered. 

Under SB 192, law enforcement can use FRT to investigate serious crimes.[140] Serious crimes include acts such as crimes of violence, human trafficking offenses, hate crimes, and crimes that pose an ongoing threat to public or national safety.[141] Notably, the bill does not define what would constitute a threat to public safety.[142] Without clear direction, it is conceivable that one law enforcement agency might define a threat to public safety as an act of terror while another might choose to draw the line at a string of armed home invasions. This can lead to hasty “on the fly” decision by individual law enforcement agencies seeking to use FRT in their investigations and individual judges tasked at reviewing the use of FRT. As SB 192 places too much subjectivity in the hands of individuals, the legislature must consider amending the bill to include explanatory language.

• Changes to be made on the legislative level regarding the use of video surveillance and recordation

While Maryland’s Annotated Code does in some ways address the concern of video surveillance and recordation, the current law is limited at best.[143] With an absence of greater restrictions on the legislative level in Maryland related to home surveillance and databasing practices, perhaps Maryland’s legislature can look to other states that afford their citizens greater protections for guidance. For example, in Georgia, so long as a camera is in plain view of the ordinary person, surveillance cameras in public and private areas are legal.[144] Hawaii boasts more restrictive surveillance laws requiring the consent of all recorded individuals if the recordation occurs in private.[145] Other states like Kansas, Delaware, New Hampshire, and Maine require consent from individuals being filmed under the “reasonable expectation of privacy” theory.[146] These laws are not without flaws and could be more restrictive but may serve as a guide to more protective legislation.

Further, Maryland’s robust databasing and surveillance methodology perhaps requires its own unique model of legislation that accounts for the vast amount of tracking occurring in Maryland. To be clear, Maryland has welcomed the opportunity to restrict access to its databases in certain scenarios. In 2021, the Maryland General Assembly amended Md. Code Ann., Gen. Prov. § 4-320.1 to account for concerns that U.S. Immigration and Customs Enforcement (“ICE”) was utilizing the Maryland Image Repository System (“MIRS”) to deport suspected undocumented individuals.[147] Because MIRS is supervised by the Department of Public Safety and Correctional Services (“DPSCS”), any federal and state agency is able to gain access to the data contained on MIRS through DPSCS’s system.[148] Accordingly, data showed that ICE had requested data from MIRS via DPSCS fifty-six times between 2018 and 2019.[149] Interestingly, Maryland was reported as the only state allowing ICE to access its citizens’ data without requiring significant authorization.[150] Section 4-320.1 now requires any federal agency seeking to enforce federal immigration law to present State officials with a valid warrant prior to performing a facial recognition search on the MIRS database.[151]

The amendment to Section 4-320.1 is an example of the Maryland General Assembly’s willingness to afford undocumented individuals greater protection from surveillance and databasing methodology. If the General Assembly is open to enforcing protection against unwarranted searches for non-residents, it follows that it would also do so for its own citizens. Enacting legislation that protects the rights of Maryland citizens against comprehensive and unwarranted surveillance and databasing policing methodologies will afford comfort to Maryland citizens that their privacy rights are respected and protected by their State. This will also decrease the amount of unjustified surveillance, which can lead to a greater claim of privacy for Maryland residents. If this cannot be accomplished in the legislative sphere, perhaps greater privacy protections can be afforded through judicial interpretation.

• Changes that can be made in the courts

In the digital age, it is important to recognize the need to adapt unfitting frameworks to address modern understandings. As technology develops and government surveillance practices evolve, the need for courts to re-evaluate the way Fourth Amendment privacy rights are understood is more important than ever. While it is true that judges are not opposed to considering modern technological considerations when rendering a decision, at this point in time, it is nothing more than that, a consideration.

When the Fourth Circuit Court of Appeals addressed the Baltimore City Police Department’s (“BPD”) Aerial Investigation Research (“AIR”) Program, the majority was not naive to the role technology plays in one’s expectation of privacy.[152] The Court of Appeals reversed the lower court’s denial of a preliminary injunction against the AIR program recognizing that the aggregation of individuals’ images stored on various state databases would allow BPD, and perhaps other Maryland law enforcement agencies, to easily access intimate details of a person’s life in a way that was sought to be protected by Katz.[153] Although the Court of Appeals was deliberate in its decision to apply the Reasonable Expectation of Privacytest in a way that considered the potential risks posed by persistent databasing practices and technological advancements, the court’s decision did not change the way Fourth Amendment technology cases will be handled in the future and courts in other jurisdictions are not required to follow in the court’s footsteps.[154]

One way for courts to address the threat to individual privacy rights posed by technological advancements is to adapt the Katz framework to modern times. In her concurring opinion in Jones, Justice Sotomayor proposed a framework that would allow courts to generously account for modern considerations without straying from the traditional Fourth Amendment privacy test.[155] Justice Sotomayor suggested that instead of asking the traditional question posed in Katz, courts should ask whether an individual had a reasonable expectation “that their movements [would] be recorded and aggregated in a manner that enables the government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on.”[156] Just like the Katz test, this framework focuses on individual and societal reasonable expectations of privacy. Where the framework differs, however, is that it introduces the consideration of recordation and aggregation. Justice Sotomayor’s framework identifies societal values that ought to be afforded greater protection. If Maryland courts were to adopt this framework for evaluating privacy challenges, Maryland residents’ privacy rights would be protected in a way unlike ever before.

Conclusion

With rapid expansions in technology, evaluations of privacy have become a growing concern. In recent years there has been a rise in the installation of home security surveillance systems due to the ease, low cost, and convenience of these systems.[157] This increase expands the amount of surveillance systems in public areas. Maryland law enforcement agencies are aware of this growth and have begun utilizing data collected from homeowners to supplement their already robust surveillance capabilities.[158]

When considered alongside the development of facial recognition technology, the expansion of surveillance systems across the State allows for extensive surveillance practices by Maryland law enforcement.[159] Since evaluations of privacy hinge on public versus private spaces,[160] and these practices expand the areas that individuals consider part of their private life, extensive surveillance threatens to expose Maryland residents to increased lawful surveillance. Accordingly, it is integral for the Maryland legislature to take action to protect the constitutional privacy rights of Maryland residents as the current legislation in Maryland falls short.[161] In addition, Maryland courts have the ability to fill in the gaps in Maryland legislation through judicial interpretation.[162] As such, Maryland courts should consider adopting a more restrictive interpretation of the Fourth Amendment and its Maryland counterpart, Article 26 to address the concerns to privacy posed by the growing digital age and surveillance methodology expansion. In doing so, Maryland can ensure that the privacy rights of its citizens, an integral guarantee of the Constitution, are protected.

---

* Yakira Price: J.D. Candidate, 2024, University of Baltimore School of Law. I would like to thank my faculty advisor, Professor David Jaros, and the 2022-2023 Comments Editor, Ilianna Murgallis, for their direction and guidance throughout the research and writing process. I would also like to acknowledge Professor Katie Kronick who instilled in me a passion for Fourth Amendment privacy protection considerations. I extend a huge thank you to the 2023-2024 University of Baltimore Law Forum executive board and staff for their hard work and dedication throughout the editorial process. Thank you to my amazing family, specifically my husband and parents, for their unwavering support and encouragement throughout the comment process and law school in general. And finally, thank you to my beautiful daughter for being a constant source of comfort, love, and happiness. 

[1] The following is a hypothetical scenario crafted based on the prevalence of surveillance cameras that people encounter on a daily basis and the surveillance methodology utilized by law enforcement; see infra Parts I and II; see also Section II.e (discussing the Tuggle case and the use of surveillance methodologies to track a suspect over time).

[2] See, e.g., Facial Recognition Privacy Protection Act: Hearing on S.B. 192 Before the S. Jud. Proc. Comm., 2023 Leg., 445th Sess. (Md. 2023) (written testimony of Scott D. Shellenberger, State’s Atty. for Balt. Cnty.) (describing a police investigation involving the use of various Maryland databases and facial recognition software to identify a potential suspect).

[3] See infra Parts I, II.

[4] See infra Part I.

[5] See infra Part I.

[6] See infra Part II; S.B. 192, 445th Gen. Assemb., 2023 Sess. (Md. 2023).

[7] See infra Part II.e.

[8] See infra Part III.

[9] See infra Part III.

[10] U.S. Const. amend. IV.

[11] See Katz v. United States, 389 U.S. 347, 360-62 (1967) (Harlan, J., concurring); Expectation of Privacy, Cornell L. Sch. Legal Info. Inst. (Dec. 2022), https://www.law.cornell.edu/wex/expectation_of_privacy.

[12] See Katz, 389 U.S. at 361; Expectation of Privacy, supra note 11.

[13] Katz, 389 U.S. at 351.

[14] See id. at 361 (Harlan, J., concurring).

[15] Id.

[16] Id.

[17] Id. (internal quotations omitted).

[18] See id.  

[19] Katz, 389 U.S. at 351.

[20] Id.

[21] Expectation of Privacy, supra note 11.

[22] See Andrew G. Ferguson, Persistent Surveillance, 74 Ala. L. Rev. 1, 25-26 (2022) (discussing the Jones concurring Justices’ concerns with the traditional test used for searches and technology).

[23] See United States v. Jones, 565 U.S. 400, 415 (2012) (Sotomayor, J., concurring).

[24] Id. at 416.

[25] See id.

[26] Id. (quoting United States v. Cuevas-Perez, 640 F.3d 272, 285 (7th Cir. 2011) (Flaum, J., concurring)).

[27] See infra Section I.A.ii; See generally Carpenter v. United States, 138 S. Ct. 2206 (2018).

[28] Evan H. Caminker, Location Tracking and Digital Data: Can Carpenter Build a Stable Privacy Doctrine?, 2018 U. Mich. Sup. Ct. Rev. 411, 431 (2019); Carpenter, 138 S. Ct. 2206, 2217 (2019).

[29] Carpenter, 138 S. Ct. at 2217.

[30] See Ferguson, supra note 22, at 26-27.

[31] See Ferguson, supra note 22, at 27; Carpenter, 138 S. Ct. at 2218 (“[T]he rule the Court adopts must take account of more sophisticated systems that are already in use or development . . . ”); Kyllo v. United States, 533 U.S. 27, 36 (2011).

[32] North America Smart Home Security Cameras Market Size, Share & Trends Analysis Report by Product (Wired, Wireless), by Application (Doorbell Camera, Indoor Camera), and Segment Forecasts, 2023-2030, Grand View Rsch., https://www.grandviewresearch.com/industry-analysis/north-america-smart-home-security-cameras-market-report (last visited July 10, 2023), [hereinafter North American Smart Camera Report].

[33] Smart Home Security Cameras Market Size, Share & Trends Analysis Report by Technology (Wired, Wireless), by Application (Doorbell Camera, Indoor Camera, Outdoor Camera), by Region, and Segment Forecasts, 2023-2030, Grand View Rsch., https://www.grandviewresearch.com/industry-analysis/smart-home-security-camera-market (last visited July 24, 2023), [hereinafter Smart Home Security Camera Report].

[34] Id.

[35] North American Smart Camera Report, supra note 32.

[36] Id.

[37] See Laura Mazzuca Toops, Security Convenience Merge in Smart Home Ecosystem, SDM Mag. (Feb. 13, 2023), https://www.sdmmag.com/articles/101638-security-convenience-merge-in-smart-home-ecosystem.

[38] See North American Smart Camera Report, supra note 32.

[39] See Smart Home Security Camera Report, supra note 33.

[40] See Nicol Turner Lee & Caitlin Chin-Rothmann, Police Surveillance and Facial Recognition: Why Data Privacy Is Imperative for Communities of Color, Brookings (Apr. 12, 2022), https://www.brookings.edu/research/police-surveillance-and-facial-recognition-why-data-privacy-is-an-imperative-for-communities-of-color/. 

[41] Id.

[42] Id.

[43] See Thomas Brewster, Smart Home Surveillance: Governments Tell Google’s Nest to Hand Over Data 300 Times, Forbes (Oct. 13, 2018, 8:31 AM), https://www.forbes.com/sites/thomasbrewster/2018/10/13/smart-home-surveillance-governments-tell-googles-nest-to-hand-over-data-300-times/?sh=705c8e8d2cfa.

[44] Transparency Report: Requests for User Information, nest Legal Items, https://nest.com/legal/transparency-report/ (last visited Mar. 10, 2023) [hereinafter Transparency Report].       

[45] See Drew Harwell, Doorbell-camera Firm Ring has Partnered with 400 Police Forces, Extending Surveillance Concerns, Wash. Post (Aug. 28, 2019, 6:53 PM), https://www.washingtonpost.com/technology/2019/08/28/doorbell-camera-firm-ring-has-partnered-with-police-forces-extending-surveillance-reach/ (explaining how Ring and law enforcement agencies have partnered in an effort to protect neighborhoods and support criminal investigations).

[46] See id. (describing the concern posed by Ring’s partnerships with police noted by legal professionals and privacy advocates).

[47] See Caroline Haskins, Amazon Told Police It Has Partnered with 200 Law Enforcement Agencies, Vice: Motherboard (July 29, 2019, 1:43 PM), https://www.vice.com/en/article/j5wyjy/amazon-told-police-it-has-partnered-with-200-law-enforcement-agencies. 

[48] See Neighbors by Ring App, Ring, https://ring.com/neighbors (last visited July 10, 2023).

[49] Id.

[50] Neighbors Public Safety Service, Ring, https://ring.com/neighbors-public-safety-service (last visited July 10, 2023) [hereinafter NPSS].

[51] Haskins, supra note 47.

[52] Id.; NPSS, supra note 50.

[53] See Brewster, supra note 43; Transparency Report, supra note 44 (“For example, if a US government agency presented us with a search warrant to investigate a crime they think was captured on a Nest Cam, we wouldn’t just hand over user data.”); Haskins, supra note 47.

[54] See generally Brewster, supra note 43 (discussing Nest’s cooperation with governmental data requests and the lack of transparency surrounding the disclosure of user data); see also Haskins, supra note 47 (discussing Ring’s collaboration with law enforcement to fight crime).

[55] Turner Lee & Chin-Rothmann, supra note 40.

[56] Andrew G. Ferguson, Facial Recognition and the Fourth Amendment, 105 Minn. L. Rev. 1105, 1115 (2021).

[57] See generally Vigilant FaceSearch – Facial Recognition System, Motorola Sols., https://www.motorolasolutions.com/en_xa/products/command-center-software/analysis-and-investigations/vigilant-facesearch-facial-recognition-system.html (last visited Nov. 1, 2022); Solutions: Law Enforcement, Clearview AI,https://www.clearview.ai/law-enforcement (last visited Mar. 19, 2023).

[58] Turner Lee & Chin-Rothmann, supra note 40.

[59] See id.

[60] See id.

[61] See Brandon M. Scott, CitiWatch Resident Online Application: What is the CitiWatch Community Partnership?, Balt. City Police Dep’t, https://citiwatch.baltimorecity.gov/ (last visited July 19, 2023) (describing the collaborative nature of the CitiWatch program between the City’s law enforcement agencies and residents).

[62] See Jurisdiction Maryland, PERPETUAL LINE-UP, https://www.perpetuallineup.org/jurisdiction/maryland (last visited Nov. 2, 2022) (describing the Maryland Image Repository databasing system which possesses vast amounts of citizen data); see also CityView: Services, Facilities and the City Activities: Find: CCTV Cameras, Balt. City, https://cityview.baltimorecity.gov/cityview21/?theme0=CCTVE%20Cameras&place=null (last visited July 19, 2023) (providing an interactive map that pinpoints the government operated cameras in Baltimore City which play a huge role in the State’s databasing abilities).

[63] See infra Sections II.a, II.c. (discussing Maryland law enforcement’s camera rebate programs and its use of the Maryland Image Repository System).

[64] See infra Section II.b.

[65] See infra Sections II.c, II.d.

[66] See infra Section II.e.

[67] Jasmine Hilton, Montgomery County to Offer Rebates for Private Security Cameras, Wash. Post (July 29, 2022, 6:18 PM), https://www.washingtonpost.com/dc-md-va/2022/07/29/montgomery-county-private-cameras-rebate/.

[68] Id.

[69] Who’s Watching the More Than 700 CitiWatch Cameras Across Baltimore?,CBS Balt. (Jan. 17, 2018, 11:11 PM), https://www.cbsnews.com/baltimore/news/baltimore-citiwatch-cameras/.

[70] CitiWatch Community Partnership Program Overview, Balt. City Police Dep’t, https://www.baltimorepolice.org/community/citiwatch-community-partnership-overview (last visited Nov. 23, 2022).

[71] Id.

[72] Frequently Asked Questions, CitiWatch Resident Online Application,  https://cityservices.baltimorecity.gov/CitiWatchResident/Faq.aspx (last visited Mar. 10, 2023).

[73] CitiWatch Community Partnership Program Overview, supra note 70.

[74] See supra Section I.a.i (discussing how courts analyze privacy rights based on the general public’s understanding of privacy).

[75] Jurisdiction Maryland, supra note 62.

[76] Id.

[77] Id.

[78] Praise for Face Recognition in Maryland Shooting, Identity Wk.: Planet Biometrics (July 3, 2018), https://identityweek.net/praise-for-face-recognition-in-marlyand-shooting/.

[79] Derek Hawkins, The Cybersecurity 202: Maryland Scored a Win Using Facial Recognition Software in Annapolis Shooting, Wash. Post (July 2, 2018, 7:29 AM), https://www.washingtonpost.com/news/powerpost/paloma/the-cybersecurity-202/2018/07/02/the-cybersecurity-202-maryland-scored-a-win-using-facial-recognition-software-in-annapolis-shooting/5b391be71b326b3348addc39/.

[80] See id. (discussing the different civil liberty groups who voiced concern for the use of FRT and MIRS).

[81] See id. (discussing concerns of improper oversights of the MIRS database and the way FRT contributes to systemic racism).

[82] Id.

[83] Id.; see Kahri Johnson, Face Recognition Software Led to His Arrest. It Was Dead Wrong, WIRED (Feb. 28, 2023, 7:00 AM), https://www.wired.com/story/face-recognition-software-led-to-his-arrest-it-was-dead-wrong/ (discussing the potential inaccuracies of FRT specifically for Black people).

[84] Aliza Vigderman & Gabe Turner, Are Security Cameras Legal?, Security.org (May 10, 2023), https://www.security.org/security-cameras/legality/ (explaining that certain U.S. cities and counties have specific laws pertaining to their own areas).

[85] See generally id.  

[86] Md. Const. art. XXVI; Dan Friedman, The Maryland State Constitution: A Reference Guide 36-37 (2006).

[87] Md. Const. art. XXVI (“That all warrants, without oath or affirmation, to search suspected places, or to seize any person or property, are grievous and oppressive; and all general warrants to search suspected places, or to apprehend suspected persons, without naming or describing the place, or the person in special, are illegal, and ought not to be granted.”).

[88] Friedman, supra note 86.

[89] Md. Code Ann., Cts. & Jud. Proc. § 10-402(c)(3) (West 2019).

[90] Id. § 10-402(c)(7); see Malpas v. State, 116 Md. App. 69, 83, 695 A.2d 588, 595 (1997) (stating that a violation of Maryland’s Wiretap Statute depends on whether one of the parties had a reasonable expectation of privacy).

[91] Md. Code Ann., Crim. Law § 3-903(c) (West 2012).

[92] See Cts. & Jud. Proc. § 10-402(c)(3); see also Crim. Law § 3-903(c).

[93] See Crim. Law §§ 3-901 to -903.

[94] Crim. Law § 3-901(a)(2).

[95] Id. § 3-901(b).

[96] See Crim. Law § 3-902(a)(5)(i)-(ii).

[97] Crim. Law § 3-903(b)(2).

[98] Id. § 3-903(b)(7).

[99] See generally Richardson v. State, 481 Md. 423, 282 A.3d 98 (2022) (applying Fourth Amendment privacy standard’s to the warrantless search of a backpack); see also Owens v. State, 322 Md. 616, 589 A.2d 59 (1991) (holding that the defendant has a reasonable expectation of privacy in the contents of his personal bag); see, e.g., State v. Andrews 227 Md. App. 350, 134 A.3d 324 (2016)(holding that a person has a reasonable expectation of privacy against being tracked via a cell site simulator without a search warrant based on probable cause).

[100] See generally Padilla v. State, 180 Md. App. 210, 949 A.2d 68 (2008) (holding that Article 26 of the Maryland Constitution’s Declaration of Rights does not require reasonable articulable suspicion for drug dog scans of a stopped vehicle); see also Jones v. State,407 Md. 33, 962 A.2d 393 (2008) (holding that the officers’ received consent to search the area, thus did not violate Article 26 of the Maryland Constitution’s Declaration of Rights); see also Ford v. State,184 Md. App. 535, 967 A.2d 210 (2009) (vacating defendant’s drug convictions as Article 26’s probable cause requirement had not been established).

[101] See, e.g.,Richardson v. State, 252 Md. App. 363, 259 A.3d 156 (2021) (holding that one does not have a reasonable expectation of privacy in abandoned property); see also Gahan v. State, 290 Md. 310, 430 A.2d 49 (1981) (holding that one has no reasonable expectation of privacy in a camper belonging to another individual).

[102] See generally United States v. Tuggle, 4 F.4th 505 (7th Cir. 2021).

[103] Id. at 511.

[104] Id.

[105] Id.

[106] Id.

[107] Id. at 511-12.

[108] Tuggle,4 F.4th at512.

[109] Id. at 529.

[110] Id. at 511.

[111] Id. at 514.

[112] Id. at 516.

[113] Id. at 524.

[114] See generally supra Section II.a (discussing the prevalence of video surveillance in Maryland).

[115] See generally supra Sections I.b.ii, II.a (discussing the connection between home security camera installation, partnerships between homeowners and law enforcement, and surveillance capabilities).

[116] See supra Section I.c (discussing the use of FRT by law enforcement agencies).

[117] See generally Leaders of a Beautiful Struggle v. Balt. Police Dep’t, 2 F.4th 330 (4th Cir. 2021) (en banc).

[118] Id. at 333.

[119] Id.

[120] Id.

[121] Id. at 334.

[122] Id. at 341(quoting Carpenter v. United States, 138 S. Ct. 2206, 2218 (2018)).

[123] Leaders of a Beautiful Struggle, 2 F.4th at 342 (quoting Carpenter, 138 S. Ct. 2206 at 2217).

[124] See supra Section I.a.i.

[125] As the claim to privacy is based on what one’s understanding of privacy is, as more recordation becomes known and accepted, the claim to privacy in those spaces is weakened. See supra Section I.a.i;Katz v. United States, 389 U.S. 347, 351-52 (1967) (because the Katz standard hinges an individual’s knowledge of public spaces, as technology develops and more spaces are understood to be public via recordation, the claim to privacy is lessened).

[126] Henderson v. State, 89 Md. App. 19, 24, 597 A.2d 486, 488 (1991).

[127] See infra Sections III.a, III. b.

[128] H.D. 1422, 2023 Gen. Assemb. (Md. 2023); S. 192, 2023 Gen. Assemb., 445th Sess. (Md. 2023).

[129] See S. 192.

[130] Id. (regarding exceptions carved out in SB 192 for permissible uses of FRT in criminal investigations).

[131] Though restricting the unchecked use of FRT by Maryland law enforcement agencies is one step towards protecting citizens’ privacy, by omitting any language relating to the ongoing use of surveillance cameras, which are huge feeders for the data run through FRT, SB 192 does not address the full picture of the way local law enforcement uses technology to usurp privacy rights from Maryland residents. See generally id.

[132] See Md. Gen. Assemb. Dep’t of Legis. Servs., Fiscal and Policy Note, S. 192, 2023 Gen. Assemb. 445^th Sess., at 1 (2023).

[133] Id. at 2.

[134] Id.

[135] Id.

[136] Id. at 1.

[137] Id.

[138] See Md. Gen. Assemb. Dep’t of Legis. Servs., Fiscal and Policy Note, S. 192, 2023 Gen. Assemb. 445^th Sess., at 3 (2023).

[139] Id.

[140] See id. at 2.

[141] Id.

[142] See S. 192, 2023 Gen. Assemb., 445th Sess. (Md. 2023).

[143] See Md. Code Ann., Crim. Law §§ 3-901 to -903 (West 2023).

[144] See Vigderman & Turner, supra note 84.

[145] See Haw. Rev. Stat. §§ 711-1100, -1110.9, -1111 (West 2023) (defining a private place as a location “[w]here one may reasonably expect to be safe from casual or hostile intrusion or surveillance, but does not include a place to which the public or a substantial group thereof has access”); Hawai’i: Reporters Recording Guide, Reporters Comm. For Freedom of the Press, https://www.rcfp.org/reporters-recording-guide/hawaii/#:~:text=The%20consent%20requirements%20for%20recording,has%20consented%20to%20the%20recording (last updated May 2020).

[146] Vigderman & Turner, supra note 84; see Kan. Stat. Ann. § 21-6101(a)(6) (West 2010); Del. Code Ann. tit 11, § 1335(a)(6) (West 2017); N.H. Rev. Stat. Ann. § 570-A:2 (1969).

[147] See H.D. 23, 2021 Gen. Assemb., 443rd Sess. (Md 2021); see also Public Information Act – Motor Vehicle Administration – Warrant for Personal Information and Reporting: Hearing on H.D. 892 Before the H. Env’t and Transp. Comm., 2020 Leg., 441st Sess. 2-3 (Md. 2020) [hereinafter Hearing on H.D. 892] (statement of Del. Dana M. Stein, Member, H. Env’t and Transp. Comm.) (supporting House Bill 892 which was introduced during the 2020 legislative session regarding the same issue).

[148] Hearing on H.D. 892, supra note 147, at 2.

[149] Id.

[150] Id.

[151] Md. Code Ann., Gen. Provisions § 4-320.1(b) (West 2022).

[152] See generally Leaders of a Beautiful Struggle v. Balt. Police Dep’t, 2 F.4th 330 (4th Cir. 2021).

[153] Id. at 346.

[154] See United States v. Bowers, No. 2:18-CR-00292-DWA, 2021 U.S. Dist. LEXIS 196899, at *12 (W.D. Pa. Oct. 11, 2021) (stating that the Fourth Circuit’s holding in Beautiful Struggle did not affect its decision because of the difference in the technology at hand); see also Sanchez v. L.A. Dep’t of Transp., 39 F.4th 548 (9th Cir. 2022) (distinguishing the persistent tracking in Beautiful Struggle from the location tracking at issue).

[155] See United States v. Jones, 565 U.S. 400, 415 (2012) (Sotomayor, J., concurring).

[156] Id.

[157] See supra Section I.b.i.

[158] See supra Sections II.a, II.b.

[159] See supra Section II.e.

[160] See supra Section I.a.i.

[161] See supra Section III.a, III.b.

[162] See supra Section III.c.