Facial Recognition

Preventing Government Facial Recognition Oppression

Pervasive real-time police surveillance is not just theoretical anymore.

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FacialRecognitionPixinooDreamstime
Pixinoo/Dreamstime

"Facial recognition is the perfect tool for oppression," write Woodrow Hartzog, a professor of law and computer science at Northeastern University, and Evan Selinger, a philosopher at the Rochester Institute of Technology. It is, they persuasively argue, "the most uniquely dangerous surveillance mechanism ever invented."

During a speech at the Brookings Institution last December, Microsoft chief Brad Smith said, "If we fail to think these things through, we run the risk that we're going to suddenly find ourselves in the year 2024 and our lives are going to look a little too much like they came out of the book 1984." San Francisco's board of supervisors is considering an outright ban on police use of the technology.

The public is already uneasy about the widespread police use of facial recognition technology. A 2018 Brookings poll found that 50 percent of Americans "believe there should be limits on the use of facial recognition software by law enforcement, 26 percent do not, and 24 percent are unsure." Forty-two percent think that facial recognition software invades personal privacy, 28 percent do not, and 30 percent are unsure. Forty-nine percent believe the government should not compile a data base of people's faces, 22 percent think they should, and 29 percent are unsure.

The Project On Government Oversight (POGO), a nonpartisan watchdog, has just issued a report called Facing the Future of Surveillance. It starkly outlines the dangers to liberty posed by this technology, and it offers some recommendations for how to limit abuses.

Facial recognition technology combines the software for creating faceprints with vast photo databases and a pervasive deployment of surveillance cameras. The report notes that law enforcement can use facial recognition technology for four purposes: arrest identification (to confirm an arrestee's ID), field identification (to ID a person stopped by an officer), investigative identification (to obtain images for IDing an unidentified suspect), and real-time surveillance (to match unidentified folks to a watchlist).

Roughly half of all American adults already have pre-identified photos in databases that are used for law enforcement facial recognition searches. (As a user of Known Traveler and CLEAR, I am definitely among them.) Closed-circuit television (CCTV) cameras operated by police agencies are proliferating, as are police body cameras. The biggest worry is that the government could weave together the feeds from 30 million private security cameras to build a CCTV network on the scale similar to China's surveillance system.

Also, the authorities can scrape all those photos you've uploaded onto social media platforms to augment their image databases.

The POGO report highlights the fact that current facial recognition technologies have huge false positive rates and thus would mostly draw law enforcement attention to innocent citizens, even if they boost the "efficiency" of police surveillance. But the threats to civil liberties are heightened if we assume that facial recogniton technology is nearly perfect.

The report notes the Fourth Amendment's protection from "unreasonable searches and seizures" is meant to check the government's power over its citizens by limiting the amount of information it knows about us. Consider the 2011 Supreme Court decision in United States v. Jones, in which police tracked a suspect after surreptitiously attaching a GPS monitor to his vehicle. In her concurring opinion, Justice Sonia Sotomayor warned that unrestricted use of such relativey inexpensive technologies, which offer "such a substantial quantum of intimate information about any person whom the Government, in its unfettered discretion, chooses to track," could "alter the relationship between citizen and government in a way that is inimical to democratic society." She added, "Awareness that the Government may be watching chills associational and expressive freedoms."

The ways in which government could use unchecked facial recognition to oppress citizens are myriad, but let's just reflect on one example. In 1958, the State of Alabama demanded that the National Association for the Advancement of Colored People (NAACP) hand over its membership lists. In NAACP v. Alabama, the Supreme Court ruled against the state: "Immunity from state scrutiny of petitioner's membership lists is here so related to the right of petitioner's members to pursue their lawful private interests privately and to associate freely with others in doing so as to come within the protection of the Fourteenth Amendment." As the POGO report notes, the police could now, without consent or notification, obtain something like a group's membership list by simply deploying a camera outside one of its events and scanning the images through facial recognition software.

"If individuals believe that each camera on the street is cataloging every aspect of their daily lives, they may begin to alter their activities to hide from potential surveillance," notes the report. "That is something we must avoid, and we can do so through sensible reforms which demonstrate that checks against abuse are in place."

The report recommends that the government must obtain a probable-cause warrant whenever it seeks to use facial recognition to identify an individual. Using facial recognition for field identification must be limited to situations in which an officer has stopped someone based on probable cause that the individual has committed, is committing, or is about to commit a crime. Exigent circumstances such as IDing a missing person are excepted.

The report also recommends that the government should not be permitted to regularly scan locations and events, tag every individual without identifying them by name, save and update these profiles, and then use this stockpile of data to match a recorded profile once an individual becomes a person of interest. Creation of mass databases of these "metadata profiles" would severely undermine privacy and would risk chilling public participation in sensitive activities.

As Edward Snowden revealed, the National Security Agency was doing precisely this sort of database construction with respect to our personal electronic communications—an unconstitutional invasion of our privacy that turned out to be entirely useless when it came to preventing terrorist attacks. Domestic facial recognition surveillance would be considerably more intrusive.

The report also recommends that real-time facial recognition surveillance be strictly limited to emergency situations in which senior law enforcement officials must sign written authorizations declaring that specific individuals pose an immediate threat to public safety. In addition, facial recognition should be limited to preventing, investigating, and prosecuting only serious crimes—homicide, rape, robbery, aggravated assault, burglary, larceny, arson. In other words, police shouldn't be able to scan everyone at a football game with the aim of identifying suspects who also happen to be sports fans.

POGO also strongly recommends an indefinite moratorium on incorporating real-time facial recognition systems into police body cameras. Why? "Facial recognition built into body cameras would create the serious risk of isolating officers, forcing them to make unilateral decisions prompted by an unreliable computer system," the report observes. "Given the heightened possibility of misidentifications by real-time facial recognition, this would put the public at greater risk of misidentifications, and lead officers to make incorrect decisions that reduce law enforcement efficiency and harm police-community relations." Police body cameras should be used solely to monitor police interactions with the public.

In addition, all facial recognition systems must be tested by independent entities, and all law enforcement uses of facial recognition must be disclosed to criminal defendants prior to trial.

Adopting these recommendations would help ameliorate the threat posed by police use of facial recognition technology. But given the steady erosion of Fourth Amendment protections, reining in the government's abuse of this technology over the long term seems dicey.

Importantly, the POGO report argues that the principles of federalism should be followed too, so states and localities can enact stronger protections that are not preempted. I applaud the measure introduced at the San Francisco board of supervisors aiming to ban the police use of facial recognition technology in that city, and I hope that many more states and muncipalities will soon enact similar prohibitions.

NEXT: Chelsea Manning Jailed Because She Won't Testify About WikiLeaks

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  1. “As the POGO report notes, the police could now, without consent or notification, obtain something like a group’s membership list by simply deploying a camera outside one of its events and scanning the images through facial recognition software.”

    Back in the days of the Red Scare, the FBI used to take down the license plate numbers of cars parked outside of site of meetings of suspected communist organizations. I’m sure southern states pursued similar tactics in investigating “subversive” (i.e., pro-integration) activities.

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  2. Facial recognition system use by government agents will only truly be a concern when they outlaw wearing masks in public, and of course the idea of that ever happening in a free society is laughable.

    1. when they outlaw wearing masks

      Or burqas.

      Or “excessive” makeup.

      Or “making faces”.

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  3. Most important thing is to focus on fixing government.

    The technology won’t go away. Pretending it can be controlled is for fools, like keeping guns or drugs out of criminal hands. You deal with the criminal aggressors, not the tools or the objects they use. Same goes for government aggression.

    1. Whew! I thought I was the only 1 who saw this clearly.

      1. I see clearly that you’re Hihn and should fuck off.

    2. This is it. The tech can’t be stopped. Forbidding the government from using it will just result in them contracting from private databases.

      Same as license plate scanners, DNA collectors, fingerprint collectors, all of them: it can’t be stopped.

      There is a bright silver lining. The rich and powerful have far more to lose from being tracked then the poor do. Maybe your neighbors would search such databases for your activity; millions will be fanatics about trcking the rich and powerful.

      1. We’re toast.

        1. Cut government budgets so they cannot afford to spend any money on this nonsense.

          Get budgets down to the equivalent of a small town where the city has to decide to install that new traffic signal or cut a secretary’s position.

  4. My fake nose and moostachio fools them. Add a ball cap and sunglasses from time to time.

  5. Yeah, this bell really can’t be unrung. Even if laws are enacted (just one more law will get us to utopia!) preventing law enforcement from using FR software, there are plenty of workarounds. Google and Facebook’s versions of this stuff is already pretty damn good; my archive of Google photos is searchable by peoples’ names, even if I’ve personally never tagged them.

    Cops will just take a photo, drop it into a google drive or do a reverse image search, and voila. I’m sure they already are.

  6. If you’ve done nothing wrong, you’ve nothing to worry about. Worrying is proof enough you’ve done something wrong. An officer will be sent around by the time you finish reading this post. For your own safety it is requested you be spread-eagled face-down on the front lawn with your hands open when he arrives and that all dogs should be executed prior to his arrival. Thank you for your cooperation.

    1. If you’ve done nothing wrong, you’ve probably never done anything at all.

    2. For your own safety it is requested you be spread-eagled face-down on the front lawn with your hands open when he arrives

      Oh, this is too easy.

  7. Next, genitalia recognition to facilitate prosecution of sexting.

    1. [puts glasses and fake moustache on genitals]

      1. Don’t you mean *monocle*?

        1. If this whole time, you guys have been using ‘monocle’ as a euphemism for genitals, I am outta here.

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  8. as are police body cameras

    Oh, damnit, burned by accountability protocols again!

  9. I applaud the measure introduced at the San Francisco board of supervisors aiming to ban the police use of facial recognition technology in that city

    For that ban to be effective, someone’s going to have to give cursory attention to the Rule of Law.

  10. The phenomenon of application-interdependency, coupled with the troublesome purchase of Pittsburgh Pattern Recognition by Alphabet/Google, very strongly implies that this has already gone too far.

    If you assume that every image that crosses an Android phone is archived by Google and saved to PittPatt even if the image was deleted by the user/system, you will not be far wrong. If you also assume that the same is true for any image that traverses an iPhone or the Apple ecosystem, you will again not be far wrong.

    Give that PittPatt is the go-to source of all tyrants and despots who want to use facial recognition biometrics to command and control their troublesome populations, I’m confident that “it’s gone too motherfucking far” is a bit of an understatement at this point in time.

    Honestly, if the average user were capable of comprehending what is actually going on with the internet at large…nevermind. If the average user were capable of comprehension, things would still be as they are and would still continue to get worse because comprehension has no effect on the inertia of apathy.

  11. Oh, for Pete’s sake!
    This is no more a potential problem than the current practice of scanning vehicle license plates.
    Really, people expect the government to do all kinds of things that no one ever does.

    It’s not like the IRS targets corporations based on beliefs
    It’s not like the cops take your stuff without even filing charges and make you sue to get it back.
    It’s not like the feds are tracking and recording the metadata of every call.
    It’s not like you need to pay fees and take courses and carry a license just to exercise your constitutional rights.
    Really, people, just relax.

    1. Again: We’re toast.

  12. I don’t see this as a liberty issue per se. What’s the problem w knowing who everybody is, or where anybody is? If you get to watch the world, why doesn’t the world get to watch you?

    1. The government budgets should be cut to such a level that they dont have the money for toys like facial recognition gadgets.

  13. “If individuals believe that each camera on the street is cataloging every aspect of their daily lives, they may begin to alter their activities to hide from potential surveillance,”

    Or they may alter their activities so as to be innocuous.

    1. Or more likely, they won’t give a damn.

  14. Who didn’t get their drivers license picture and passport photo with false features and makeup?

    I look like Ronald McDonald in all my government photos and TSA never bats an eye.

    1. I look like Ronald McDonald in all my government photos and TSA never bats an eye.

      *raises one eyebrow*

      1. He should probably see several doctors.

  15. just wait until there is a school shooting and its found that facial recognition could have alerted authorities and it will be required everywhere even if they have to start the shooting to make it happen. If killing just a dozen lives saves one life they will be all for it

    1. /well, the twisted perp who shot up that Florida high school a year back HAD been recognised.. legitimatly and accurately, by two or more school security personnel as he entered the campus with his known-to-be rifle bag in hand. And those “security” personnel did….. no more than I did, and I was 3500 miles away. THEY were right there, one of them with not only a phone but a radio comm device both ready to hand. Still did nothing. Anyone else dream that a hireling security guy is more capable than a stupid TeeVee camera when it comes to identifying known individuals?

  16. During a speech at the Brookings Institution last December, Microsoft chief Brad Smith said, “If we fail to think these things through, we run the risk that we’re going to suddenly find ourselves in the year 2024 and our lives are going to look a little too much like they came out of the book 1984.” San Francisco’s board of supervisors is considering an outright ban on police use of the technology.

    Yeah, this is scary, but I’m looking forward to the day when some hacker links the facial recognition software the software running our traffic lights.

  17. Could one intentionally confuse the system by posting lots of photos of others and tag them as you?

  18. Science fiction authors have written stories about societies and places where people routinely wore masks. (And not always the same mask.) This would help defeat facial recognition software.

    Now, what happens when they are able to sample the ambient air for shed skin cells and do real-time DNA identification…?

  19. “”Facial recognition is the perfect tool for oppression,” write Woodrow Hartzog, a professor of law and computer science at Northeastern University, and Evan Selinger, a philosopher at the Rochester Institute of Technology. It is, they persuasively argue, “the most uniquely dangerous surveillance mechanism ever invented.””

    Meh. We already carry around GPS trackers with always on mics.

  20. If your face isn’t causing problems, then you have nothing to fear. Only criminals and terrorists are at risk. Why do you support criminals and terrorists?

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  22. The thing that cncerns me here is that the city talking about banning facial recognition is San Fran. Normally I would applaud the idea, but since the city administration have shown again and again that they are idiots, I begin to question my position.

  23. The thing that cncerns me here is that the city talking about banning facial recognition is San Fran. Normally I would applaud the idea, but since the city administration have shown again and again that they are idiots, I begin to question my position.

  24. I prefer it when we can legally photograph the cops, but they can’t legally photograph us.

  25. ’50 percent of Americans “believe there should be limits on the use of facial recognition software by law enforcement, 26 percent do not, and 24 percent are unsure.” Forty-two percent think that facial recognition software invades personal privacy, 28 percent do not, and 30 percent are unsure. Forty-nine percent believe the government should not compile a data base of people’s faces, 22 percent think they should, and 29 percent are unsure.’

    those are numbers that should terrify anyone who believes that human adults can handle their own affairs largely without a nanny state. it is a huge concern to me that nearly a third do not believe that facial recognition invades privacy, and a quarter do not believe there should be limits on authorities use of the technology and do think that “the government” should have a database of everyone’s biometrics. how do people not see the vast concentration of power that these ideas would accept, and not grasp the massive potential for abuse that goes with that concentration of power??

  26. If man were meant to fly he’d have wings.

    Seriously, the constitution is over 200 years old and we need rights recognized to keep up with changes to our environment.

    Those who would use new technology to have control over us are happy if our rights remains outdated.

    Who has the responsibility and authority to keep the rights enumerated in the constitution relevant to our reality?

    What are the criteria that validate and define our rights?

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  28. “The biggest worry is that the government could weave together the feeds from 30 million private security cameras to build a CCTV network on the scale similar to China’s surveillance system.”

    Sadly, most of today’s internet-accessible home surveillance systems are easily “hacked” into (not really hacked… they have little-to-no security and all you really need is an IP address). On boring days, I used to search for the IPs and watch them. Mostly stores, but some houses. On many of them I could even control the PTZ (pan, tilt and zoom) cameras and move them around.

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  33. Your confusion is understandable, but this blog is called The Volokh Conspiracy.

  34. Surely, I’m confident that “it’s gone too motherfucking far” is a bit of an understatement at this point in time.

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