civil liberties

Should Police Facial Recognition Be Banned?

San Francisco is set to become the first city in the U.S. to ban police officers and other government officials from using facial recognition technology. Concerns about police using facial recognition are well-founded. Absent strong restrictions, police use of facial recognition poses a significant threat to our privacy and could hamper First Amendment-protected protests and other legal activities. Amid such concerns, it makes sense to keep the technology away from law enforcement until adequate policies have been implemented. While San Francisco officials ponder a ban we should consider if there are policies that could allow for police to use facial recognition without putting our civil liberties at risk or if the potential for abuse is so great that it warrants a ban.  

“Facial recognition” is a term that applies to a wide range of systems used to confirm identity via automated image analysis. While these systems have been much-discussed recently, facial recognition has been around for decades. Much of the recent focus on facial recognition is a function of its improved accuracy and proliferation. 

All over the world private businesses, law enforcement agencies, and national governments are using facial recognition systems. At its best, facial recognition can help improve security at banks and schools, help the blind, and make payments easier. But at its worst it’s an ideal tool for ubiquitous and persistent surveillance. In China, authorities use facial recognition to conduct surveillance and shame jaywalkers. This technology is a crucial part of one of the most extensive, intrusive, and oppressive surveillance apparatus in history, which the Chinese state uses to target the Uyghur Muslim minority in the western Xinjiang province. While there are many differences between the U.S. and China, we should keep in mind that when it comes to the degree of surveillance the differences between China and the U.S. are legal and regulatory rather than technological.  

American citizens and residents may enjoy more civil liberties protections than people living in China, but we should nonetheless be concerned about domestic law enforcement use of surveillance technology. After all, law enforcement agencies are already using facial recognition technology, and manufacturers have expressed interest in improving the technology in ways that could put civil liberties at risk.  

According to Grand View Research, we should expect law enforcement to spend more on facial recognition. In 2018, the size of the government “facial biometrics” market was $136.9 million and is expected to be $375 million in 2025.  

The scale of law enforcement’s current use of facial recognition is larger than many realize. According to Georgetown’s Center on Privacy and Technology half of American adults are already in a law enforcement facial recognition network, and at least 26 states allow law enforcement to conduct facial recognition searches against driver’s license and other ID photo databases.  

Chicago Police Don’t Need Facial Recognition Drones

Chicago Mayor Rahm Emanuel is backing legislation that passed the state Senate earlier this month that would allow Illinois police to use drones to monitor “large scale events,” including protests. This legislation would be worrying enough if the drones were merely outfitted with video and audio capability. However, these drones could one day be equipped with facial recognition tools, amplifying the privacy risks associated with drones buzzing over citizens engaging in First Amendment-protected activities.

Supporters of drone surveillance such as State Senator Martin Sandoval (D-11th District) cite public safety concerns as justification for this bill. But public safety can and is cited for any new piece of surveillance equipment. When considering the deployment of surveillance technology we should consider how the technology is likely to be used, not how its proponents say it will.

The proposal, backed by two of Emanuel’s General Assembly allies, is an amendment to Illinois’ Freedom from Drone Surveillance Act, which includes some admirable provisions, such as a warrant requirement. If passed, police would be permitted to use drones to surveil any event with at least one hundred people in attendance. Protests and demonstrations are only a few of the events that could fall into this category – football games, parades, music performances, and conventions would also be fair game for drone surveillance. 

Chicago police are already technology pioneers, taking advantage of what University of the District of Columbia law professor Andrew Guthrie Ferguson calls “Big Data Policing.” In Chicago, police use a secret algorithm that assigns a police risk score to hundreds of thousands of residents. Tens of thousands of these residents are classified as “high risk” of being involved in a shooting despite having never been arrested or shot. 

The Chicago Police Department has been criticized for conducting social media surveillance, and a few years ago it acknowledged that it had been using cell-site simulators – powerful snooping tools originally designed for military use. Given the CPD’s propensity for new surveillance gadgets we should expect its officers to fly drones over protests and similar gatherings if provided the opportunity.

CBP Drones: Inefficient and a Threat to Privacy

My colleague David Bier and I have written a policy brief on the unmanned aerial vehicles (UAVs) flown by Customs and Border Protection (CBP). We argue that CBP’s fleet of Predator B drones are a threat to the privacy of Americans living along the border and an inefficient tool for locating illegal border crossers and illegal drugs. In addition, state and local use of these UAVs mean that American living in the interior are also at risk of being the target of warrantless surveillance.

Predator B drones may have a reputation as highly efficient military tools, but on the homefront they’ve proven inefficient at contributing to border security. For instance, in the last few years CBP’s predator drones have contributed to less than a percent of illegal border crosser apprehensions at a cost of $32,000 per arrest. When it comes to marijuana seizures, the drone fare little better, being responsible for about 3 percent of marijuana seizures in the same time period.

These inefficient UAVs pose a threat to Americans living along the border and in the interior. State and local law enforcement can request CBP drones for assistance. In fact, the first domestic law enforcement use of UAV to assist an arrest was in 2011, when police in North Dakota requested the use of a CBP Predator. Thanks to three Supreme Court cases from the 1980s warrantless aerial surveillance does not run afoul of the 4th Amendment. While some states have passed warrant requirements for UAVs, it’s not clear whether CBP adheres to state warrant requirements when acting on the behest of state and local law enforcement.

Keep Facial Recognition Away From Body Cameras

The Chinese tech giant Alibaba recently invested $600 million in a start-up that specializes in facial and object recognition. Thanks to the investment the start-up, SenseTime, is now the world’s most valuable artificial intelligence start-up. Although such technology undoubtedly has potential when it comes to picking up your morning coffee and easing congestion at metro ticket lines, it has been making news in China because it is playing an increasingly prevalent role in that country’s growing surveillance state. While the Chinese are leaders in surveillance technology innovation, we should keep in mind that facial recognition in the U.S. also poses a unique and significant threat to privacy, and it’s a threat that is not being adequately addressed.

Facial recognition fits in the family tree of biometric investigatory technologies, which determine identity via analysis of unique biological and physical traits. Many are familiar to anyone who watches CSI shows or other fictional portrayals of law enforcement: fingerprint and DNA analysis are a couple of examples.

If law enforcement has access to your fingerprints it’s likely because you volunteered them as part of a job requirement, you’re an immigrant, they were recorded after you were arrested, or they were collected at a crime scene. About 40 percent of fingerprints in the FBI’s fingerprint database are not related to arrests or forensic investigations. The FBI’s DNA database only includes DNA related to criminal arrests or forensic investigations.

Unlike databases for fingerprints and DNA, one of the FBI’s facial recognition services allows agents to search through databases that mostly include information related to law-abiding Americans, with only 8 percent of the facial images in the network being associated with criminal or forensic investigations. This is in part thanks to the fact that the FBI has access to drivers license photos from at least 16 states as well as passport photos from the State Department. All told, this Facial Analysis Comparison and Evaluation services allows the FBI to access more than 411 million facial images. A Georgetown study on facial recognition estimates that about half of American adults can be found in a law enforcement facial recognition network.

This is especially concerning because facial recognition can be used to conduct surveillance. It’s already being used for the purpose in China, and here in the U.S. the law enforcement community seems poised to spread the use of facial recognition without sufficient limitations in place.

Introducing “Checkpoint: America”

Today, the Cato Institute is launching a new online initiative: Checkpoint America: Monitoring the Constitution-Free Zone.

For over 60 years, the executive branch has, through regulatory fiat, imposed a “border zone” that extends as much as 100 miles into the United States. Within this area–which, according to the ACLU, encompasses two-thirds of the U.S. population–are a series of Soviet-style internal checkpoints run by the Department of Homeland Security’s Customs and Border Protection (CBP) service. The majority of these stretch across the southwestern United States from southern Calfornia to the Texas Gulf Coast. As outlined below, CBP agents operating these checkpoints routinely violate the constitutional rights of citizens and other who are forced to pass through them to get to work, go to the store, or make it to a vacation destination in the American Southwest.

Because these checkpoints can be either fixed or mobile, research for this project involved the use of multiple data sources to help provide precise geolocational data and detailed physical descriptions of a given fixed checkpoint, or, where captured on overhead imagery, a temporary checkpoint. In particular, prior reports by the Government Accountability Office (2009 and 2017), as well as Google Earth and the Streetview functionality in Google Maps, were critical in helping pinpoint existing checkpoints and making possible relatively precise physical descriptions of the facilities and equipment present at each. The ACLU, including it’s Arizona chapter, also provided valuable data.

The need for this project, and for greater scrutiny of these checkpoints, is more pressing than ever.

ICE Doesn’t Belong in the Intelligence Community

Some officials at Immigration and Customs Enforcement (ICE) are reportedly looking into the agency joining the Intelligence Community (IC). Making ICE, which is responsible to deportations, a member of the IC would be a mistake, putting our civil liberties at risk by giving the agency increased access to vast troves of information not related to immigration enforcement.

ICE officials have been pushing for this change since the Obama administration, but the close relationship between intelligence agencies and immigration enforcement officials is nothing new. Almost one hundred years ago, one of the most notorious set of deportations in American history occurred, thanks in large part to domestic law enforcement acting like a spy agency.

In 1919 followers of the Italian anarchist Luigi Galleani sent mail bombs to dozens of prominent public figures, including Attorney General Mitchell Palmer. Although the wannabe assassins failed to kill any of their intended targets, the bombings sparked the United States’ first “Red Scare.”

ICE To Track License Plates

Immigration and Customs Enforcement (ICE) has access to billions of license plate images that allow for the agency to engage in near real-time tracking of its targets. This surveillance capability should instill a sense of unease in us all, even if we aren’t in ICE’s crosshairs. 

Vigilant Solutions, the private company that reportedly collects the data ICE will query, owns a database with more than 2 billion license plate photos that produces 100 million hits a month. These photos come from toll roads, parking lots, vehicle possession agencies, as well as local law enforcement. According to ICE’s privacy impact assessment for the license plate tracking program, Vigilant Solutions’ data includes images from 24 of the US’ top 30 most populous metropolitan areas. ICE does not contribute license plate images to the database.

ICE policy does provide some privacy protections, but they fall far short of what the agency should impose on itself. ICE may only query the database for license plate numbers in order to find information about vehicles that are part of “investigatory or enforcement activities.” Given that ICE has been increasing the number of noncriminal undocumented immigrants it arrests, it’s safe to assume that ICE’s use of the license plate database will extend beyond investigations into undocumented immigrants who are wanted for violent crimes. 

ICE’s privacy impact assessment states that investigators with ICE’s Enforcement and Removal Operations, the agency responsible for deportations, will be able to access five years worth of license plate location data.

Those who believe that ICE should be dedicating significant resources to deporting non-violent undocumented immigrants may applaud the use of license plate location data. What they should consider is that they could be the targets of identical surveillance in the future. The federal government has conducted surveillance on a wide range of targets, and surveillance tools won’t change just because the target will.

The Constitution provides little protection when it comes to long-term warrantless tracking. In 2012, the Supreme Court unanimously held that the warrantless 28-day GPS tracking of a car violated the Fourth Amendment. However, the opinion of the Court, written by Justice Scalia and joined by his colleagues Chief Justice Roberts and Justices Kennedy, Thomas, and Sotomayor, is grounded in the physical intrusion of the GPS locator on the car rather than the GPS tracking violating the driver’s expectation of privacy.

Privacy Still at Risk Despite New CBP Search Rules

International travelers, citizens and foreigners alike, enjoy reduced privacy protections at ports of entry. Thanks to the “border exception” to the Fourth Amendment, Customs and Border Protection (CBP) officers do not need reasonable suspicion or probable cause to search electronic devices at airports. This regrettable authority made headlines last year after CBP officers searched phones belonging to innocent American citizens. CBP has updated its electronic device search policy via a new directive. While the directive does include a welcome clarification, it states that CBP can search anyone’s electronic devices without probable cause or reasonable suspicion.

The CBP’s new directive begins by outlining the unfortunate state of the Fourth Amendment at the border and ports of entry. The Fourth Amendment protects “persons, houses, papers, and effects” from “unreasonable searches and seizures.”

Yet, as Justice Rehnquist wrote in his majority opinion in United States v. Ramsey (1977):

[S]earches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border.

In 1985, Rehnquist reiterated this point, writing in his United States v. Montoya de Hernandez (1985) majority opinion:

Routine searches of the persons and effects of entrants are not subject to any requirement of reasonable suspicion, probable cause, or warrant.

CBP conducted numerous warrantless searches of electronic devices last year. Perhaps most notable was the January 2017 case involving Sidd Bikkannavar, an American citizen, member of the CBP Global Entry program, and NASA Jet Propulsion Laboratory engineer. After arriving from Chile (not exactly a hotbed of international terrorism), a CBP officer at Houston’s George Bush Intercontinental Airport asked Bikkannavar to unlock his smartphone, which happened to be NASA property. Despite Bikkannavar pointing out that the phone contained sensitive information, the officer persisted, and Bikkannavar eventually gave up the phone’s passcode.

A month after CBP needlessly interrupted Bikkannavar’s travel, agency officials reportedly stopped another American citizen, Haisam Elsharkawi, from leaving Los Angeles on his way to Saudi Arabia. According to Elsharkawi, CBP officers put him in handcuffs and pressured him into unlocking his phone. The officers released Elsharkawi without charge hours after his plane had left.

Searches of electronic devices at the border are on the rise. According to CBP’s own figures, the number of international travelers processed with electronic device searches in the 2017 fiscal year increased almost 60 percent compared to the 2016 fiscal year. While the number of travelers subjected to these searches represents a small fraction of total international travelers, it’s clear that these warrantless searches have targeted innocent Americans and are unlikely to stop. At a time when the smartphone is an increasingly integral part of modern life, containing most of our intimate and private details, this authority is of acute concern.

Miami-Dade Police Abandon Aerial Surveillance Plans

Image from PSSThe Miami-Dade Police Department (MDPD) is scrapping plans to test persistent aerial surveillance technology following criticism from privacy advocates. This kind of technology has prompted privacy concerns in others cities, with Baltimore being perhaps the most notable. One of the best-known aerial surveillance companies allows users to keep a roughly 25 square mile area under surveillance and comes with “Google Earth with TiVo” capability, The news from Miami-Dade county. while reassuring, underlines a number of issues concerning federalism, privacy, and transparency that lawmakers must tackle as aerial surveillance tools improve and proliferate.

MDPD Director Juan Perez was set to ask county commissioners to retroactively approve a grant application to the Department of Justice for the aerial surveillance testing. The fact that MDPD was seeking federal money for the surveillance equipment reminds us that federal involvement in state and local policing should be strictly limited.

The aptly-named Persistent Surveillance Systems (PSS), the Ohio-based company that made the sensor system deployed in Baltimore, uses technology originally designed for military operations in Iraq and Afghanistan.

Military equipment has an unfortunate tendency to make its way from foreign battlefields into the hands of domestic law enforcement, as my colleagues have been outlining for years. This is a trend that ought to be strongly resisted.

It’s not clear if the Department of Justice’s Office of Justice Programs would have approved MDPD’s grant application, but given the current attorney general’s record on civil liberties, as well as the president’s own enthusiasm for aerial surveillance, we shouldn’t be surprised if similar grants are approved during the Trump administration.

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