Watch Where You Walk: Law Enforcement Surveillance and Protester Privacy
Protest is a fundamental feature of democracy, yet protesters have been continuously met with domestic surveillance mechanisms intended to chill public free expression and criminalize lawful behavior. The deployment of privacy-invasive measures against protesters in public spaces has an extensive and storied history—one often rooted in racism and discrimination.
This Article discusses the disparity between the surveillance technologies available to protesters and the government, as well as the limits of proposed efforts intended to regulate government surveillance and hold law enforcement accountable.
Table of Contents Show
I. Body-Worn Cameras
Anonymous speech is an important tenet of public__ __protests, and the footage captured by body-worn cameras, particularly when coupled with facial recognition technology, can be used to identify and target certain protesters.
There are widespread issues with body-worn cameras being deployed for discriminatory purposes against certain neighborhoods, certain protests, or certain defendants. Prosecutors have a long history of hiding or refusing to turn over exculpatory evidence, and there is no formal requirement forcing law enforcement to turn over footage during the plea bargaining process, prior to a criminal trial.
This false promise of accountability from body-worn cameras is additionally exacerbated by law enforcement’s attempts to obscure and conceal footage. A union representing 24,000 New York City police officers sued the New York City Police Department (NYPD) in 2018 to prevent the public release of body camera footage without a court order,
The Justice in Policing Act, which was introduced in June 2020 and supported by 200 members of Congress, promises to “improve accountability and transparency of use of force by law enforcement officers, assist in responding to complaints against law enforcement officers, and improve evidence collection.” While the bill has numerous positive benefits, including prohibiting the problematic practice of pairing body-worn camera footage with facial recognition software, it would also increase grant funding for body-worn camera programs.
II. License Plate Readers
Law enforcement’s use of automated license plate readers can also do a great deal of harm to protester anonymity. License plate readers photograph vehicles and automatically match license plate numbers to aggregated license numbers and vehicle ownership information within law enforcement databases. The coronavirus disease 2019 (COVID-19) pandemic has heightened the privacy implications and concerns regarding use of these readers, as many protesters are electing to drive during protests rather than march.
Following the murder of George Floyd by law enforcement officers in Minneapolis, Minnesota, Black Lives Matter protests have spread across the United States and the world.
Databases of these kinds are subjected to little oversight, and can reveal incredibly sensitive details about individuals, including where they work, where they live, and what they protest. According to a 2009 report issued by the International Association of Chiefs of Police, mobile license plate reader units can read and collect the license plate numbers of vehicles parked near the staging areas for political protests.
III. Cell-Site Location Information
A cell phone’s location—whether it is stationary or moving—can be tracked through cell-site location information or global positioning system data.
Geofence warrants mean that every protester in possession of a cell phone with enabled geolocation capabilities can be included in a mass-scale dragnet of location data and other personal identifiers (IP addresses, cell numbers, names, etc.) that can be sent to law enforcement. Protesters might not ever know that their data was aggregated through such a search.
Researchers have recently demonstrated the potential to discern trends in protest size using aggregate cell-site location information datasets from third-party data brokers.
IV. Drones
Law enforcement’s use of drones to surveil protesters comes with its own host of ethical and privacy concerns. While drones pose unique legal questions, there are numerous similarities between drone data collection and the collection and retention of cell-site location information. In a recent case concerning the use of drones as tools for government surveillance, a Maryland district court denied the plaintiff’s request to prevent the Baltimore Police Department from implementing an aerial surveillance operation called the Aerial Investigation Research (AIR) pilot program.
The court distinguished the city’s drone program from the cell-site location information at issue in Carpenter and determined that the cell-site data in that case “offer[s] a far more intrusive, efficient, and reliable method__ __of tracking a person’s whereabouts than the AIR pilot program.” In particular, the court noted that while a cell phone generally relays its location data “several times a minute,” the AIR program’s inability to fly at night and in bad weather creates “gaps in the data [that] will prohibit the tracking of individuals over the course of multiple days.” However, the American Civil Liberties Union (ACLU) argues that the Carpenter court upheld a Fourth Amendment claim inclusive of gaps in cell-site location data, such as when people “turn off their cell phones, leave them at home, or travel out of their service provider’s coverage area.”
In addition to aerial surveillance, law enforcement’s use of drones could expand into actual intervention on the ground. For example, airborne technologies could be potentially developed with the intent to control or dispel protesters—perhaps by deploying tear gas
V. Facial Recognition Technologies
Facial verification and recognition technologies have become common-place in everyday life, from unlocking mobile devices to reverse image searches online.
Facial recognition technologies are merely the newest form of encoding visible markers as a mechanism for classification, but the algorithms at their core remain flawed.
Law enforcement’s use of facial recognition technology against protesters also highlights the degree of subjectivity allowed in its application, permitting officers to decide which protesters are surveilled and which are not. During the protests for Freddie Gray in 2016, the Baltimore Police Department used real-time maps of protesters’ social media logins to specifically identify Black Lives Matter protesters—and in some cases using facial recognition to identify protesters with outstanding warrants.
Clearview AI’s facial images repository holds more than 3 billion images.
Private companies can hold, or at least attempt to hold, Clearview AI responsible for violating terms of service with their scraping methods of collection.
Given concerns around disparate impacts, some companies have already taken the initiative to withdraw and all-together abstain from providing facial recognition services to law enforcement agencies. Amazon, whose Rekognition
While private companies’ attempts to self-regulate are admirable, the legislative branch must codify how facial recognition technology is developed, distributed, and implemented.
At present, however, there is no federal law that addresses biometric technologies, or their impact on protesters’ rights, despite vocal calls for a ban on law enforcement’s use of facial recognition and state legislation attempting to address the issues posed by the technology. The Justice in Policing Act would attempt to regulate law enforcement’s use of facial recognition technologies on a federal level by limiting use and requiring the completion of a study examining the impact of the technology on an individual’s constitutional rights. Sponsors of the bill note that it is the first-ever comprehensive approach to hold police accountable, end racial profiling, change the culture of law enforcement, empower communities, and build trust between law enforcement officers and our communities by addressing systemic racism and bias.
VI. Counter-Surveillance Technologies Available to Protesters
Current regulations and social norms favor the use of surveillance technologies by law enforcement, while disfavoring the ability of protesters to surveil and identify police officers. As a result of this power inequity, protesters have developed inventive ways to try to protect themselves from unwanted surveillance, thwart intrusions into their privacy, and preserve their rights to protest with anonymity.
The Supreme Court has ruled that the right to anonymous free speech is protected by the First Amendment, noting that “[a]nonymity is a shield from the tyranny of the majority.”
In addition to protecting their anonymity, protesters have attempted to countersurveil law enforcement, including monitoring police scanners
Even though it is technically legal to record law enforcement officers and officials acting in a public capacity,
Much of the political activism today is coordinated online using various communication and social media platforms, and those that support end-to-end encrypted messaging potentially provide a level of protection against interception from law enforcement. However, some of these platforms and messaging services are tied to or maintained by providers who willingly share metadata—as well as content, in some cases—with law enforcement without legal process.
In addition to these grassroots efforts, some activists are proactively trying to level the playing field. In one instance, a group in New York City is attempting to create an archive of traffic camera footage to hold law enforcement accountable (the camera footage is traditionally provided to the public only as a real-time feed).
While privacy-preserving means of protesting are shared within communities and across the media, law enforcement’s tactics are always going to outweigh protesters’ efforts due to a single tool that has too long shielded law enforcement’s misconduct from reform: qualified immunity. States and local governments may want to follow Colorado’s lead, where, pursuant to a recently passed bill, law enforcement officers can be held financially liable if they are found guilty of violating an individual’s civil rights.
Conclusion
As digital surveillance technologies advance, so too does the risk for targeted repression.
Copyright © 2020 Katelyn Ringrose and Divya Ramjee. Katelyn Ringrose, JD, is the Christopher Wolf Diversity Law fellow at the Future of Privacy Forum. Her publications have focused on the Fourth Amendment, genetic privacy, body-worn cameras, and more. The views herein do not necessarily reflect those of Future of Privacy Forum supporters or board members. Divya Ramjee is a doctoral candidate at American University in the Department of Justice, Law & Criminology. Her research interests include cybercrime and intellectual property crime, biotechnology, and the application of machine learning methodology in the field of criminology. This author is currently employed by the U.S. Department of Justice, and the views expressed in this article are exclusively those of the author and do not necessarily represent the views of the U.S. Department of Justice, its components, or the United States. DOI: https://doi.org/10.15779/Z38G44HR3X.
- Katelyn Ringrose, Law Enforcement’s Pairing of Facial Recognition Technology with Body-Worn Cameras Escalates Privacy Concerns, Univ. Il. L. REV. 1 (2019), https://illinoislawreview.org/wp-content/uploads/2019/03/Ringrose-1.pdf [https://perma.cc/DG78-NV5E] (religious and racial minorities that have been affected by government monitoring include law enforcement officials in the deep south forcing Black slaves to carry lanterns at night to prevent their escape from White-owned plantations; as well as the Federal Bureau of Investigation’s monitoring and attempted delegitimization of Reverend Martin Luther King, Jr. and other members of the Black clergy). ↑
- Jacob J. Hutt, Is the Government Planning to Surveil Keystone XL Protesters? ACLU (Sep. 4, 2018), https://www.aclu.org/blog/free-speech/rights-protesters/government-planning-surveil-keystone-xl-protesters [https://perma.cc/B3CX-PX8J]. ↑
- Molly K. McGinley et al., The Biometric Bandwagon Rolls on: Biometric Legislation Proposed Across the United States, THE NAT’L L. Rev. (Mar. 25, 2019), https://www.natlawreview.com/article/biometric-bandwagon-rolls-biometric-legislation-proposed-across-united-states#:~:text=Currently%2C%20three%20states%2C%20Illinois%20%5B,effect%20on%20January%201%2C%202020 [https://perma.cc/4EX3-HGZY]. ↑
- Alvaro M. Bedoya, The Color of Surveillance, SLATE (Jan. 18, 2018), https://slate.com/technology/2016/01/what-the-fbis-surveillance-of-martin-luther-king-says-about-modern-spying.html [https://perma.cc/6DDV-BD2F] (the modern spy era cannot be discussed without understanding surveillance as a pervasive means of monitoring Black individuals, and enforcing racist notions of race-based criminogeniology: “Across our history and to this day, people of color have been the disproportionate victims of unjust surveillance; Hoover was no aberration. And while racism has played its ugly part, the justification for this monitoring was the same we hear today: national security.”); see also, Lindsay Beyerstein, Tracking Blackness: A Q&A with Dark Matters Author Simone Browne, Political Research Associates (June 7, 2016), http://www.politicalresearch.org/2016/06/07/tracking-blackness-a-qa-with-dark-matters-author-simone-browne#sthash.Q72kGxUr.f0xpQXso.dpbs [https://perma.cc/73C3-VJG3] (noting that slave branding served as a precursor to biometric identifiers used today). ↑
- Emily Hong, Hands Up, Don’t Film: Body Worn Cameras and Protests, New America (Oct. 9, 2015), https://www.newamerica.org/oti/blog/hands-up-dont-film-body-worn-cameras-and-protests/ [https://perma.cc/L4ZN-PLEZ]; Jason Leopold, Emails Show Feds Have Monitored ‘Professional Protester’ DeRay Mckesson, Vice (Aug. 11, 2015), https://www.vice.com/en_us/article/qv58n3/emails-show-feds-have-monitored-professional-protester-deray-mckesson [https://perma.cc/BND9-PQY8] (emails leaked in 2015 from the Department of Homeland Security revealed that the federal government monitored the activities of Black Lives Matter organizers). ↑
- Overview of Body-Worn Camera Use by Law Enforcement, National Institute of Justice (Dec. 4, 2017), https://nij.ojp.gov/topics/articles/research-body-worn-cameras-and-law-enforcement [https://perma.cc/X4AA-KLG6]; Ben Miller, Just How Common Are Body Cameras in Police Departments? Government Technology (June 28, 2019), https://www.govtech.com/data/Just-How-Common-Are-Body-Cameras-in-Police-Departments.html [https://perma.cc/K44P-5LWH ] (no numbers have been published for 2019 or 2020.) ↑
- Floyd v. City of New York, 959 F. Supp. 2d 668, 685 (S.D.N.Y. 2013). In Floyd, the court identified body-worn cameras as an exceptional way to prevent constitutional harms, noting that body-worn cameras “will provide a contemporaneous, objective record of stops and frisks.” ↑
- Letter from Civil Rights Groups to the Axon AI Ethics Board 1–2 (Apr. 26, 2018), http://civilrightsdocs.info/pdf/policy/letters/2018/Axon AI Ethics Board Letter FINAL.pdf [http://perma.cc/6YJF-36EC] (noting that Axon’s body-worn camera systems, which should serve as transparency tools, are now being reduced to powerful surveillance tools that are concentrated in heavily policed communities.) ↑
- The Illusion of Accuracy, Upturn (Nov. 2018), https://www.upturn.org/reports/2017/the-illusion-of-accuracy/ [https://perma.cc/U829-69PQ]. ↑
- Peter Hermann, Police Officers with Body Cameras are as Likely to Use Force as Those Who Don’t have Them, Wash. Post (Oct. 20, 2017), https://www.washingtonpost.com/local/public-safety/police-body-camera-study-finds-complaints-against-officers-did-not-drop/2017/10/20/4ff35838-b42f-11e7-9e58-e6288544af98_story.html [https://perma.cc/77SQ-FPNZ]; see also Barak Ariel et al., Wearing Body Cameras Increases Assaults against Officers and Does Not Reduce Police Use of Force: Results from a Global Multi-Site Experiment, 13 Eur. J. Criminol. 744, 744–755 (2016). ↑
- *Hermann, supra* note 12. ↑
- This is especially meaningful as 90-95 percent of all criminal convictions end in the plea-bargaining process, before discovery or a trial can occur. ↑
- *Lindsey Devers, Plea and Charge Bargaining*, Bureau of Just. Assistance (Jan. 24, 2011), https://bja.ojp.gov/sites/g/files/xyckuh186/files/media/document/PleaBargainingResearchSummary.pdf [https://perma.cc/NAE6-K5EP]. ↑
- See Report to the United Nations on Racial Disparities in the U.S. Criminal Justice System, The Sentencing Project (Apr. 19, 2019), https://www.sentencingproject.org/publications/un-report-on-racial-disparities/ [https://perma.cc/A6FT-8MUL] (noting that racial disparities within the criminal justice system have led to distrust between law enforcement and the communities they police. “As of 2001, one of every three black boys born in that year could expect to go to prison in his lifetime, as could one of every six Latinos—compared to one of every seventeen white boys.”). ↑
- Body-worn camera footage can be doctored and can also give the illusion of accuracy even as it shows a skewed perspective on events. See Lily Hay Newman, Police Bodycams Can Be Hacked to Doctor Footage, Wired (Aug. 11, 2018), https://www.wired.com/story/police-body-camera-vulnerabilities/ [https://perma.cc/S979-UGZ6]; see also The Illusion of Accuracy, Upturn (Nov. 2017), https://www.upturn.org/reports/2017/the-illusion-of-accuracy/ [https://perma.cc/C8ZX-HLPB]. ↑
- See State v. Durnwald, 837 N.E 2d 1234 (Ohio Ct. App. 2005) (the Court of Appeals of Ohio stated that “this court finds it incredible that such ‘accidental’ erasures continue to occur” after body-worn camera footage was lost.) ↑
- Colleen Long, Police Union Files Suit over Release of Body Camera Footage, Associated Press (Jan. 9, 2018), https://apnews.com/b097372f125d4ebd817e7e807e57dde9 [https://perma.cc/DYP6-E77C]; Alfred Ng, Police Body Cameras at Protests Raise Privacy Concerns, CNet (June 9, 2020), https://www.cnet.com/news/police-body-cameras-at-protests-raise-privacy-concerns/ [https://perma.cc/3M5W-EMRP]. ↑
- Max Parrot, Law Firm Sues NYPD to Obtain Body cam Footage of Deadly Maspeth Police-involved Shooting, QNS (Aug. 20, 2019), https://qns.com/story/2019/08/20/law-firm-files-sues-nypd-to-obtain-body-cam-footage-of-deadly-maspeth-police-involved-shooting/ [https://perma.cc/8XGR-9TCQ]. ↑
- Eric Umansky, The NYPD Isn’t Giving Critical Bodycam Footage to Officials Investigating Alleged Abuse, ProPublica (July 3, 2020), https://www.propublica.org/article/the-nypd-isnt-giving-critical-bodycam-footage-to-officials-investigating-alleged-abuse [https://perma.cc/54JZ-V3CP]. ↑
- Monica Nicklesburg, Seattle Will Order Police to Turn on Body Cameras During Protests Despite Privacy Concerns, GeekWire (June 8, 2018), https://www.geekwire.com/2020/seattle-will-order-police-turn-body-cameras-protests-despite-privacy-concerns/ [https://perma.cc/PSG7-SXFG]. ↑
- Matthew Guariglia, Victory! California Governor Signs A.B. 1215, EFF (Oct. 9, 2019), https://www.eff.org/deeplinks/2019/10/victory-california-governor-signs-ab-1215 [https://perma.cc/A74C-MGWT]. ↑
- George Floyd Justice in Policing Act, H.R. 7120, 116th Cong. (2019-2020). ↑
- Benjamin Wofford, The Genius of Protesting in Car Caravans, Washingtonian (June 1, 2020), https://www.washingtonian.com/2020/06/01/the-genius-of-protesting-in-car-caravans/ [https://perma.cc/4BTP-S7EU]. ↑
- Zach Whittaker, Police License Plate Readers are Still Exposed on the Internet, TechCrunch (Jan. 22, 2019), https://techcrunch.com/2019/01/22/police-alpr-license-plate-readers-accessible-internet/ [https://perma.cc/5E2H-GWMA]. ↑
- Demonstrations Force America to Reckon With Contentious Past, N.Y. Times (June 16, 2020), https://www.nytimes.com/2020/06/16/us/george-floyd-rayshard-brooks-protests.html [https://perma.cc/M54X-7JKD]. ↑
- For one example of law enforcement use of License Plate Readers, see the Minneapolis City Police Department’s Police Conduct Oversight Commission Surveillance Whitepaper, (Mar. 2019), http://www2.minneapolismn.gov/www/groups/public/@civilrights/documents/webcontent/wcmsp-218180.pdf [https://perma.cc/A5ZQ-NERS]. ↑
- Automated License Plate Readers, Minn. Stat. § 13.824 (2019), https://www.revisor.mn.gov/statutes/cite/13.824 [https://perma.cc/CL4U-5C83]. ↑
- Patrick McGreevy, LAPD Automatic License Plate Readers Pose a Massive Privacy Risk, Audit Says, L.A. Times (Feb. 13, 2020), https://www.latimes.com/california/story/2020-02-13/privacy-risks-automatic-license-plate-readers-lapd [https://perma.cc/G9LW-P6XD]. ↑
- Zach Whittaker, Police License Plate Readers are Still Exposed to the Internet (Jan. 22, 2019), TechCrunch, https://techcrunch.com/2019/01/22/police-alpr-license-plate-readers-accessible-internet/ [https://perma.cc/DJF6-YEEE]. ↑
- Privacy Impact Assessment Report for the Utilization of License Plate Readers, Int’l Ass’n of Chiefs of Police (Sep. 2009), https://www.theiacp.org/sites/default/files/all/k-m/LPR_Privacy_Impact_Assessment.pdf [https://perma.cc/L442-G3MN]. ↑
- Id. ↑
- Cell Site Location Information, Electronic Frontier Found. (Mar. 28, 2019), https://www.eff.org/files/2019/03/28/csli_one-pager.pdf [https://perma.cc/VG35-MRYJ]. ↑
- Matthew Guariglia, How to Identify Visible (and Invisible) Surveillance at Protests, Electronic Frontier Found. (June 4, 2020), https://www.eff.org/deeplinks/2020/06/how-identify-visible-and-invisible-surveillance-protests [https://perma.cc/R4ZW-JX9H] (identifying cell-site simulators). ↑
- See, e.g., Denise Lavoie, Geofence Warrants to be Tested in Virginia Bank Robbery Case, Associated Press (July, 3, 2020), https://apnews.com/ae0dbee812feefe4f54d3539885f9f54 [https://perma.cc/9P3T-R9YD] (recent case involving a geofence warrant). ↑
- Emily Glazer & Patience Haggin, Political Groups Track Protesters’ Cell Phone Data, WSJ (June 14, 2020), https://www.wsj.com/articles/how-political-groups-are-harvesting-data-from-protesters-11592156142 [https://perma.cc/D979-473S] (where a massive dragnet of protester data was harvested by political groups). ↑
- S.B. S1838, 2020 Leg., Reg. Session (N.Y. 2020), https://www.nysenate.gov/legislation/bills/2019/s8183 [https://perma.cc/CR5J-822Z]. ↑
- Anton Sobolev, et al., News and Geolocated Social Media Accurately Measure Protest Size Variation, 1 Am. Pol. Sci. Rev. 1-9 (June 30, 2020) (a recent research paper noting the use of CLSI to discern crowd size for various protests, including the 2017 Women’s Marches). ↑
- Caroline Haskins, Protesters Marching Across the Country Had No Idea That a Tech Company Was Spying on Them, Buzzfeed (June 25, 2020), https://www.buzzfeednews.com/article/carolinehaskins1/protests-tech-company-spying [https://perma.cc/63V8-D4PQ]. ↑
- Id. ↑
- Sobolev et al., supra note 40; see also Assaf Rotman & Michael Shalev, Using Location Data From Mobile Phones to Study Participation in Mass Protests, 1 Sociological Methods & Research 1-56 (2020). ↑
- Glazer & Haggin, supra note 35; see also Joseph Cox, I Gave a Bounty Hunter $300. Then He Located Our Phone, MotherBoard (Jan. 8, 2019), https://www.vice.com/en_us/article/nepxbz/i-gave-a-bounty-hunter-300-dollars-located-phone-microbilt-zumigo-tmobile [https://perma.cc/5MQE-8JP3] (recent worrisome uses of CSLI include political groups tracking individuals for marketing purposes, and telecom companies selling consumer CSLI to bounty hunters). ↑
- Complaint, Leaders of a Beautiful Struggle v. Baltimore Police Department, 1:20-cv-00929-RDB (D. Md. 2020). ↑
- Id. ↑
- Id. ↑
- Israel Deploys Drones to Drop Tear Gas on Gaza Protesters, The Times of Israel (Mar. 31, 2018), https://www.timesofisrael.com/israel-deploys-drones-to-drop-tear-gas-on-gaza-protesters/ [https://perma.cc/8M2X-TKN2]. ↑
- From Privacy From Aerial Surveillance: Recommendations for Government Use of Drone Aircraft, ACLU (Dec. 2011), https://www.aclu.org/files/assets/protectingprivacyfromaerialsurveillance.pdf [https://perma.cc/VG4J-UBHL]. ↑
- John D. McKinnon & Michelle Hackman, Drone Surveillance of Protests Comes Under Fire, WSJ (June 10, 2020), https://www.wsj.com/articles/drone-surveillance-of-protests-comes-under-fire-11591789477 [https://perma.cc/2ERU-K94C]. ↑
- Marie Szaniszlo, Lynch, Pressley Launch Investigation into Trump Administration’s Drone Surveillance of Protesters, Boston Herald (June 9, 2020), https://www.bostonherald.com/2020/06/09/lynch-pressley-launch-investigation-into-trump-administrations-drone-surveillance-of-protesters/ [https://perma.cc/MKZ8-5WXC]. ↑
- Karl Jacoby, Why the CBP’s Presence at the DC Protests Should Alarm All of Us, Politico (June 10, 2020), https://www.politico.com/news/magazine/2020/06/10/cbp-protests-border-zone-312151 [https://perma.cc/XVH9-V7QC]; see also Caren Kaplan & Andrea Miller, Drones as “Atmospheric Policing”: From US Border Enforcement to the LAPD, 31 Pub. Culture 419 (2019) (drones are mechanisms for atmospheric policing). ↑
- Michael S. Schmidt, Secret Service Arrests Man After Drone Flies Near White House, N.Y. Times (May 14, 2015), https://www.nytimes.com/2015/05/15/us/white-house-drone-secret-service.html [https://perma.cc/EGX8-V4VQ] (while the military and law enforcement may be able to fly drones around or near the White House for example, individual hobbyists, journalists, or civilians are barred and criminalized from doing the same). ↑
- Rebecca Heilweil, Members of Congress Want to Know More about Law Enforcement’s Surveillance of Protesters, Recode (June 10, 2020), https://www.vox.com/recode/2020/5/29/21274828/drone-minneapolis-protests-predator-surveillance-police [https://perma.cc/DYZ2-HKU2]. ↑
- Elizabeth McClellan, Facial Recognition Technology: Balancing the Benefits and Concerns, 15 J. BUS. & TECH. L. 363, 364 (2020), https://digitalcommons.law.umaryland.edu/jbtl/vol15/iss2/7/ [https://perma.cc/LP26-TVKV]. ↑
- Salvador Hernandez, A Database of Gang Members in California Included 42 Babies, BuzzFeed News (Aug 11, 2016), https://www.buzzfeednews.com/article/salvadorhernandez/database-of-gang-members-included-42-babies [https://perma.cc/43BC-LSSK]. ↑
- Dave Gershgorn, Facial Recognition Is Law Enforcement’s Newest Weapon Against Protesters, One Zero (June 3, 2020), https://onezero.medium.com/facial-recognition-is-law-enforcements-newest-weapon-against-protestors-c7a9760e46eb [https://perma.cc/P4GU-VUHU]; see also Queenie Wong, Police Use of Social Media is Under a Microscope Amid Protests, CNET (June 11, 2020), https://www.cnet.com/news/police-use-of-social-media-is-under-a-microscope-amid-protests/ [https://perma.cc/3VH3-T9TT]. ↑
- See generally Ruha Benjamin, Race After Technology: Abolitionist Tools for the New Jim Code (2019) (arguing that racism, as a means of classifying and characterizing people, is a form of technology—one that is both pervasive and incredibly normalized.) ↑
- Patrick Grother et al., Face Recognition Vendor Test (FRVT), National Institute of Standards and Technology (Dec. 2019), https://nvlpubs.nist.gov/nistpubs/ir/2019/NIST.IR.8280.pdf [https://perma.cc/6586-UMD6]. These findings were based on analysis in one-to-one matching; a notable exception to the findings of bias was that some algorithms that were developed in Asian countries did not demonstrate significant rates of false positives in one-to-one matching between Asian and Caucasian faces. One posited reason for this exception is that the foreign-developed algorithm utilized more diverse training data, suggesting that such data could produce more equitable outcomes in facial recognition algorithms. ↑
- Sidney Fussel, A Flawed Facial-Recognition System Sent This Man to Jail, Wired (June 24, 2020), https://www.wired.com/story/flawed-facial-recognition-system-sent-man-jail/ [https://perma.cc/BAK8-AT9W]. ↑
- Clare Garvie et al., The Perpetual Line-Up: Unregulated Police Face Recognition in America, Geo. L. Ctr. on Privacy & Tech. (2016), https://www.perpetuallineup.org [https://perma.cc/NSD5-38VS]. ↑
- Kevin Rector and Alison Knezevich, Maryland’s Use of Facial Recognition Software Questioned by Researchers, Civil Liberties Advocates, The Baltimore Sun (Oct. 18, 2016), https://www.baltimoresun.com/news/crime/bs-md-facial-recognition-20161017-story.html [https://perma.cc/UAW3-543A]; see also Russell Brandon, Facebook, Twitter, and Instagram Surveillance Tool Was Used to Arrest Baltimore Protestors, The Verge (Oct. 11, 2016), https://www.theverge.com/2016/10/11/13243890/facebook-twitter-instagram-police-surveillance-geofeedia-api [https://perma.cc/Y5V4-BYEF]. ↑
- Elizabeth Lopatto, Clearview AI CEO Says, “Over 2,400 Police Agencies” Use Its Facial Recognition Software, THE VERGE (Aug. 26, 2020), https://www.theverge.com/2020/8/26/21402978/clearview-ai-ceo-interview-2400-police-agencies-facial-recognition [https://perma.cc/9X9T-VECD]. ↑
- This includes technology giants such as Amazon Inc., Google LLC, Facebook Inc., Microsoft Corp, Hewlett Packard Inc., and IBM Corp, as well as Clearview AI. ↑
- Kashmir Hill, Unmasking a Company That Wants to Unmask Us All, N.Y. Times (Jan. 20, 2020, https://www.nytimes.com/2020/01/20/reader-center/insider-clearview-ai.html [https://perma.cc/NK5E-SAVX]. ↑
- Divya Ramjee & Katelyn Ringrose, The Challenges of Forensic Genealogy: Electronic Evidence, Dirty Data, and Privacy Concerns, 98 Denver U. L. Rev. 1 (forthcoming 2021). ↑
- Kashmir Hill, Twitter Tells Facial Recognition Trailblazer to Stop Using Site’s Photos, N.Y. Times (Jan. 22. 2020), https://www.nytimes.com/2020/01/22/technology/clearview-ai-twitter-letter.html [https://perma.cc/88RM-EJNR] (companies include Twitter Inc., Facebook Inc.—including Instagram—and Alphabet Inc.’s YouTube); see also Caroline Haskins, et. al, Clearview AI Wants to Sell Its Facial Recognition Software to Authoritarian Regimes Around the World, Buzzfeed News (Feb. 5, 2020), https://www.buzzfeednews.com/article/carolinehaskins1/clearview-ai-facial-recognition-authoritarian-regimes-22 [https://perma.cc/MSY8-5WAA]. ↑
- Google, YouTube, Venmo and LinkedIn Send Cease-and-desist Letters to Facial Recognition App That Helps Law Enforcement, CBS News (Feb. 5, 2020), https://www.cbsnews.com/news/clearview-ai-google-youtube-send-cease-and-desist-letter-to-facial-recognition-app/ [https://perma.cc/ZU7M-EZZ3]. ↑
- Letter from Sen. Markey to Mr. Hoan, Founder & CEO of Clearview, (June 8, 2020), https://www.markey.senate.gov/imo/media/doc/Clearview%20protests%2006.08.20.pdf [https://perma.cc/AD4J-YH7X]. ↑
- Natasha Singer, Amazon is Pushing Facial Technology That a Study Says Could Be Biased, N.Y. Times (Jan. 24, 2019), https://www.nytimes.com/2019/01/24/technology/amazon-facial-technology-study.html [https://perma.cc/L54V-H8F5]; see also Emily Birnbaum, Amazon’s Ring has 29 New Police Agreements Since the Killing of George Floyd, Protocol (June 12, 2020), https://www.protocol.com/amazons-ring-police-partnerships [https://perma.cc/5LSV-NPFM]. ↑
- We Are Implementing a One-year Moratorium on Police Use of Rekognition, Amazon (June 10, 2020), https://blog.aboutamazon.com/policy/we-are-implementing-a-one-year-moratorium-on-police-use-of-rekognition [https://perma.cc/LGL4-NVVQ]. ↑
- Rebecca Heilweil, Big Tech Companies Back Away From Selling Facial Recognition to Police. That’s Progress., Vox (June 11, 2020), https://www.vox.com/recode/2020/6/10/21287194/amazon-microsoft-ibm-facial-recognition-moratorium-police [https://perma.cc/T95A-GHK6]. ↑
- Hanna Ziady, IBM is Cancelling Its Facial Recognition Programs, CNN (June 9, 2020), https://www.cnn.com/2020/06/09/tech/ibm-facial-recognition-blm/index.html [https://perma.cc/BZB7-C3FR]. ↑
- Advocacy groups that have called for a complete ban of facial recognition technologies, include: the ACLU, Amnesty International, Algorithmic Justice League, Electronic Frontier Foundation, and Fight for the Future. Amnesty International Calls for the Ban on the Use of Facial Recognition Technology for Mass Surveillance, Amnesty International (June 11, 2020), https://www.amnestyusa.org/wp-content/uploads/2020/06/061120_Public-Statement-Amnesty-International-Calls-for-Ban-on-the-Use-of-Facial-Recognition-Technology-for-Mass-Surveillance.pdf [https://perma.cc/MX7G-FJ2P]; see also Heilweil, supra note 69. ↑
- See, e.g., John G. Browning, The Battle over Biometrics, Texas Bar (Oct. 2018), https://www.texasbar.com/AM/Template.cfm?ection=Content_Folders&ContentID=42128&Template=/CM/ContentDisplay.cfm [https://perma.cc/WP2H-K49A]. ↑
- Biometric Information Privacy Act (BIPA), 740 ILCS 14 et seq. (2008). ↑
- See Fact Sheet: Justice in Policing Act of 2020, https://judiciary.house.gov/uploadedfiles/fact_sheet_justice_in_policing_act_of_2020.pdf [https://perma.cc/LR88-7WUU]. ↑
- McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995). ↑
- Melissa Hellman, Special Sunglasses, License-plate Dresses: How to be Anonymous in the Age of Surveillance, Seattle Times (Jan. 12, 2020), https://www.seattletimes.com/business/technology/special-sunglasses-license-plate-dresses-juggalo-face-paint-how-to-be-anonymous-in-the-age-of-surveillance/. ↑
- Amarjot Singh et al., Disguised Face Identification (DFI) with Facial KeyPoints using Spatial Fusion Convolutional Network, IEEE International Conference on Computer Vision Workshops (2017), https://arxiv.org/pdf/1708.09317.pdf [https://perma.cc/V5E6-VZQ2]. ↑
- Joseph Cox, Thousands of People are Monitoring Police Scanners During the George Floyd Protest, Vice (June 1, 2020), https://www.vice.com/en_us/article/pkybn8/police-radio-scanner-apps-george-floyd-protests [https://perma.cc/B5J3-YRDH]. ↑
- Vania Ceccato, Eyes and Apps on the Streets: From Surveillance to Sousveillance Using Smartphones, 44 Crim. Just. Rev. 25, 26 (2019). ↑
- Sara Morrison & Adam Clark Estes, How Protesters are Turning the Tables on Police Surveillance, Vox (June 12, 2020), https://www.vox.com/recode/2020/6/12/21284113/police-protests-surveillance-instagram-washington-dc [https://perma.cc/K5RZ-RAPB]. ↑
- Filming and Photographing the Police, ACLU (last visited Aug. 20, 2020) https://www.aclu.org/issues/free-speech/photographers-rights/filming-and-photographing-police [https://perma.cc/BQ2X-AT5J]. ↑
- See #ProtectBlackDissent: Campaign to End Surveillance of Black Activists, ACLU (last visited Aug. 20, 2020), https://www.aclu.org/issues/racial-justice/protectblackdissent-campaign-end-surveillance-black-activists [https://perma.cc/E8N3-EVD2]. ↑
- Blur Tools for Signal, Signal (June 3, 2020), https://signal.org/blog/blur-tools/ [https://perma.cc/G9XQ-6FWJ]. ↑
- Peter Aldous, The FBI Used Its Most Advanced Spy Plane To Watch Black Lives Matter Protests, BuzzFeed News (June 20, 2020), https://www.buzzfeednews.com/article/peteraldhous/fbi-surveillance-plane-black-lives-matter-dc [https://perma.cc/H98E-57CN]; see also, Roland G. Fryer, An Empirical Analysis of Racial Differences in Police Use of Force, 27 J. POL. ECON. 1210-1261 (2019) (law enforcement interactions following an identification are more likely to be charged if the protester is a person of color—with Black and Hispanic individuals more than 50 percent likely to experience some use of force compared to Whites.) ↑
- Lily Hay Newman, The Same Old Encryption Debate Has a New Name, Wired (Oct. 3, 2019), https://www.wired.com/story/encryption-wars-facebook-messaging [https://perma.cc/6LVT-4S3R]; see also Andy Greenberg, Signal Is Finally Bringing Its Secure Messaging to the Masses, Wired (Feb. 14, 2020), https://www.wired.com/story/signal-encrypted-messaging-features-mainstream [https://perma.cc/ZM46-LY6H]. ↑
- See Social Media Surveillance, Electronic Frontier Found. (last visited Aug. 20, 2020) https://www.eff.org/issues/social-media-surveilance [https://perma.cc/V8BW-QE22]. ↑
- Brandon E. Patterson, Black Lives Matter Organizers Labeled as “Threat Actors” by Cybersecurity Firm, Mother Jones (Aug 3, 2015), https://www.motherjones.com/politics/2015/08/zerofox-report-baltimore-black-lives-matter/ [https://perma.cc/BK5C-Y238]. ↑
- John Koetsier, Hong Kong Protestors Using Mesh Messaging App China Can’t Block: Usage Up 3685%, Forbes (Sep. 2, 2019), https://www.forbes.com/sites/johnkoetsier/2019/09/02/hong-kong-protestors-using-mesh-messaging-app-china-cant-block-usage-up-3685/#720342de135a [https://perma.cc/23JU-F7GR]. ↑
- Lorenzo Franceschi-Bicchierai, Activists are Using Traffic Cameras to Track Police Brutality, Vice (June 15, 2020), https://www.vice.com/en_us/article/y3zp55/activists-are-using-traffic-cameras-to-track-police-brutality [https://perma.cc/PP8D-VA94]. ↑
- Will Richards, Anonymous Back Chicago Police Radios to Play NWA’s ‘Fuck Tha Police’, NME (June 1, 2020), https://www.nme.com/news/music/anonymous-hack-chicago-police-radios-to-play-nwas-fuck-tha-police-2680017 [https://perma.cc/HM7W-SURA]. ↑
- John Schwartz, Internet Activist, a Creator of RSS, Is Dead at 26, Apparently a Suicide, N.Y Times (Jan. 13, 2013), https://www.nytimes.com/2013/01/13/technology/aaron-swartz-internet-activist-dies-at-26.html [https://perma.cc/YBW2-BEYF]. ↑
- A San Diego woman who organized a protest could face a misdemeanor charge for allegedly encouraging others to violate stay-home orders meant to slow the spread of COVID-19. David Hernandez, ‘I was born in America with constitutional rights:’ San Diego Protest Organizer Could Face Criminal charge, The San Diego Union-Tribune (Apr. 22, 2020), https://www.sandiegouniontribune.com/news/public-safety/story/2020-04-22/san-diego-submits-case-against-weekend-protester-for-possible-criminal-charge [https://perma.cc/4HY2-EPU3]. ↑
- Li Cohen, Colorado Passes Sweeping Police Reform Bill, CBS News (June 19, 2020), https://www.cbsnews.com/news/colorado-passes-sweeping-police-reform-bill/ [https://perma.cc/4JG7-RQNU]. ↑
- Xu Xu, To Repress or to Co‐opt? Authoritarian Control in the Age of Digital Surveillance, Am. J. of Pol. Sci. (Apr. 7, 2020), https://doi.org/10.1111/ajps.12514 [https://perma.cc/3LUQ-QNZR]. ↑
- Neeta Kantamneni, The Impact of the COVID-19 Pandemic on Marginalized Populations in the United States: A Research Agenda, 119 J. of Vocational Behav. 1, 4 (2020). ↑
- Larry Diamond, The Road to Digital Unfreedom: The Threat of Postmodern Totalitarianism, 30 J. of Democracy 20, 24 (2019. ↑