The Undemocratic Spread of Big Brother

The ACLU is protesting new surveillance systems being peddled by Amazon—but that’s just the tip of the iceberg.

Earlier this week, the ACLU led a coalition of two dozen civil-rights organizations in a new protest mounted in defense of an old proposition: that “people should be free to walk down the street without being watched by the government.” Facial-recognition technology threatens that proposition.

Amazon is marketing a facial recognition product to local police agencies. And while it is hardly alone in that, its size, influence, and competence suggest that its product, Rekognition, could proliferate widely. That’s what made it the target of protest.

“Today, the ACLU and a coalition of civil rights organizations demanded that Amazon stop allowing governments to use Rekognition,” the ACLU of Northern California explained. “With Rekognition, a government can now build a system to automate the identification and tracking of anyone,” it argued. “If police body cameras, for example, were outfitted with facial recognition, devices intended for officer transparency and accountability would further transform into surveillance machines aimed at the public. With this technology, police would be able to determine who attends protests. ICE could seek to continuously monitor immigrants as they embark on new lives. Cities might routinely track their own residents, whether they have reason to suspect criminal activity or not.”

In its research, the ACLU found that two jurisdictions already use the product: the city of Orlando, Florida, and the Sheriff’s Office in Washington County, Oregon:

Washington County has since built a database of at least 300,000 mugshot photos to use in coordination with Rekognition. It also built a mobile app for its deputies to quickly scan for a match against the county’s database by submitting images obtained from surveillance or other sources … In what Orlando’s police chief praises as a “first-of-its-kind public-private partnership,” Amazon promised free consulting services to build a Rekognition “proof of concept” for the city. Rekognition face surveillance is now operating across Orlando in real-time, according to Amazon, allowing the company to search for “people of interest” as footage rolls in from “cameras all over the city.”

As alarming as those facts on the ground may be, I was more struck by what preceded them, or rather, by what failed to precede them: the public’s approval.

Says the ACLU:

Because of Rekognition’s capacity for abuse, we asked Washington County and Orlando for any records showing that their communities had been provided an opportunity to discuss the service before its acquisition. We also asked them about rules governing how the powerful surveillance system could be used and ensuring rights would be protected.

Neither locality identified such records. In fact, Washington County began using Rekognition even as employees raised questions internally. In one email, a Washington County employee expressed the concern that the “ACLU might consider this the government getting in bed with big data.” That employee’s prediction was correct.

The jurisdictions didn’t just acquire powerful new surveillance technology that undermines privacy—they did so without meaningfully seeking the permission of residents.

That ought to spark outrage, recalls, and terminations—but it is not surprising. All over the United States, law-enforcement agencies quietly adopt technology that would spark intense debate if they first asked permission. They treat the public they are meant to serve as if its views don’t matter.

No one asked the people of Compton, California if they wanted a fixed-wing aircraft to fly over their city and capture constant hi-res video of everything that happened. “This system was kind of kept confidential from everybody,” one sergeant later admitted. “A lot of people do have a problem with the eye in the sky, the Big Brother, so to mitigate those kinds of complaints we basically kept it pretty hush hush.”

The LAPD acquired surveillance drones without asking Angelenos for permission. Countless communities quietly began photographing license plates. As of March 2018, the ACLU had identified 73 agencies in 25 states and the District of Columbia that own stingray devices, used for tracking mobile phones, and reported that “many agencies continue to shroud their purchase and use of stingrays in secrecy.”

And that is just a tiny slice of current examples.

Year by year, for the foreseeable future, surveillance hardware and software will keep improving, extracting ever more information. Threats to privacy will proliferate. Communities will theoretically be able to choose whether or not their police officers make use of a given piece of new technology. But in practice, if the status quo persists, even the most intrusive innovations that portend the most radical changes in society will be quietly adopted without public notice or debate or votes that force elected officials to be accountable. The cops will just press ahead without asking permission.

This isn’t just a blow to privacy, it is a blow to democracy. Willfully and fundamentally invading a community’s privacy without its consent is illegitimate.

States with direct democracy arguably have the most promising remedy available. A ballot initiative could force all law-enforcement agencies in a given state to publicly reveal all technology in their possession that involves privacy. It could require public notice and a city council or county board of supervisors vote anytime a public agency wants to acquire a new kind of technology. And it could establish a mechanism for people in any jurisdiction to trigger a vote seeking to strip cops of the ability to use a given surveillance tool.

Pressuring Amazon to refrain from selling to public entities may slow the spread of privacy-destroying technology to local governments. But only reasserting democratic control over surveillance policy will provide an adequate safeguard over the long term.