Recent reports have revealed that several companies are currently pushing “intelligent street lights” that are capable of being loaded with various kinds of sensors including, as Reuters reported late last month,
sensors for moisture, ambient light, seismic activity, radiation, wind, temperature, air quality, audio, MAC address tracking to detect cellphones, and yes, audio and high-def video, all joined together via a 5 gig wireless system that supports both point-to-point and mesh networks, connects to intermittent Internet backbone, and uploads the largest trove of planetary data the world has ever known up to the cloud.
That’s the vision of a company called Sensity Systems, which wants to build a “billion-node network of global sensors” based in street lights. And in another report by a local TV station we learn (via C-NET) that Las Vegas is already installing audio- and video-capable street lights made by a company called Illuminating Concepts.
Meanwhile, Nextgov.com recently reported on a contracting notice the FBI has put out for video recognition technology. The agency wants technology that can “scan crime scene footage against tapes of known people, places and objects to derive names and possible whereabouts.”
The desired connect-the-dots abilities include computing the degree of similarity among pedestrians, graffiti designs, buildings in the background of photos, and other recurring images in videos and stills….
FBI officials said they are interested in technology that would automatically "cluster" or group the images—for example, programming a computer to cluster all media with the same t-shirt logo.
A function called “tracking and re-identification,” would follow a specified individual across multiple videos to eventually help find the person’s name.
Another feature would follow certain behaviors. The "automated recognition of individuals based on behavior" would use algorithms to analyze similarities in "gait, expression, voice," and other mannerisms, according to terminology for the video analysis project.
As I have observed before, accurate interpretation of complex physical and social spaces is a very difficult artificial intelligence problem, but plenty of work is being done on video analytics, and such work promises to greatly intensify the assault on our privacy.
Both of the above stories represent different dimensions through which the privacy of our public spaces is being eroded. I see that challenge taking place along three major dimensions:
- Increased distribution and density of sensors. We are currently seeing our public spaces filled with more cameras, license plate recognition systems, RFID readers, and other sensors. All of these devices will produce oceans of data about individuals.
- Increasingly intelligent analysis of data. The FBI’s hunt for video analytics is but the tip of the iceberg here. Increasingly, the need for analysis will impel the deployment of artificial intelligence techniques to sift through all the data and make judgments about where security resources should be deployed, who should be subject to further scrutiny, etc.
- Expansion of purpose. The third dimension of surveillance-expansion is an ever-growing scope of purpose to which all this data and all this analysis is likely to be devoted. Sold as helping catch terrorists and other high-importance wrongdoings, they will inevitably expand to cover far pettier offenses, from unpaid parking fines to speed limit-violators. Not to mention political protesters and dissidents.
If allowed to continue, these three dimensions in the expansion of privacy invasions will in turn contribute to three significant dynamics that threaten our way of life:
- Automated enforcement. The increasing ubiquity of sensors in our public spaces, combined with constant analysis of their data, will increasingly lead to attempts at setting up automated law enforcement systems. An early example that we are already seeing is automated red light and speed cameras. The problems with automated enforcement include the fact that computers lack the judgment to fairly evaluate the diverse circumstances surrounding a violation, or may be susceptible to bugs or hackers. They may also fail to fairly and properly translate the state of the law into computer code.
- Total enforcement. Automated enforcement, in addition to raising issues of fairness and due process, may also make possible 100% enforcement of all our traffic laws, and many other laws as well. As I discussed in this post on “Extreme Traffic Enforcement,” we are rapidly reaching the point where this is becoming technologically possible. It may sound like a good idea at first blush, but most laws have a fair amount of “play” in them—gray areas and extenuating circumstances where human beings with good judgment would not enforce them. Total enforcement of laws would prove disruptive and problematic in many ways.
- Chilling effects. Ultimately, the fear is that we become a society riddled with rigid enforcement of petty rules, and where our public lives become weighed down by an oppressive sense of constant monitoring and control.
Right now we are in a situation where, as my colleague Catherine Crump put it, capability is driving policy, but if we do not restrain the capabilities of our technology in order to stay consistent with our values, we may find ourselves living in a country we scarcely recognize.
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Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
Press ReleaseDec 2024
National Security
Religious Liberty
ACLU Statement on New White House Strategy to Counter IslamophobiaACLU Statement on New White House Strategy to Counter Islamophobia
WASHINGTON – The Biden administration today released the first-ever national strategy to counter Islamophobia and related forms of bias and discrimination, including hate against Arab, Sikh, and South Asian Americans. In advance of the strategy, American Civil Liberties Union and its partners had urged the administration to overhaul government programs that reflect anti-Muslim discrimination. In particular, we have called for urgent action to constrain governmental agencies from continuing to exercise their authorities and technology to wrongly surveil and investigate, watchlist, and question and detain Muslims at the border, as well as deny immigration benefits to people from Muslim-majority countries. While the White House raised expectations that many of these issues would be addressed, the final strategy ended up falling far short. The following is a statement from Hina Shamsi, director of the ACLU’s National Security Project: “While this strategy acknowledges discrimination and its harms, it does little to end them and is a squandered opportunity. For decades, American officials have invoked national security to pass laws and implement programs that disproportionately harm Muslims and people perceived to be Muslim. A serious anti-discrimination strategy would concretely address multiple bias-infused government practices that deny our communities equal participation in civic life and our democracy, like federal watchlisting, surveillance, and investigation. We’re profoundly frustrated that the administration didn’t take even the basic, overdue step of recognizing that anti-Muslim discrimination is uniquely normalized and embedded in government policies.” -
VirginiaDec 2024
National Security
Trabelsi v. Crawford, et al. – Lawsuit Challenging Unlawful Detention and Inhumane Treatment of Acquitted ManTrabelsi v. Crawford, et al. – Lawsuit Challenging Unlawful Detention and Inhumane Treatment of Acquitted Man
Our client, Nizar Trabelsi, is in the United States against his will. The federal government brought him here from Belgium more than a decade ago and charged him with terrorism-related crimes. At trial, the government’s case failed: a federal jury found Mr. Trabelsi not guilty. But instead of allowing Mr. Trabelsi to return to Belgium after his acquittal, the United States placed him in highly restrictive immigration detention and began an ongoing effort to force him to Tunisia, where he was born and where he will very likely be tortured. Mr. Trabelsi’s detention violates the Constitution, immigration law, and the extradition treaty between the United States and Belgium. Through this lawsuit, he seeks to return to Belgium, and he demands an immediate improvement of his detention conditions. -
Press ReleaseDec 2024
National Security
Immigrants' Rights
Federal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is UnlawfulFederal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is Unlawful
ALEXANDRIA, Va. — This week, the U.S. District Court for the Eastern District of Virginia ruled that the court does not have jurisdiction to decide whether the government can continue to detain Nizar Trabelsi, a Tunisian national who was brought to the United States against his will for prosecution and was cleared of all charges last year. The ruling means the United States will be able to continue to detain Mr. Trabelsi while it attempts to deport him to Tunisia, where he was born and where, as an immigration judge ruled earlier this year, he will likely face torture. The court also concluded that even if it did have jurisdiction over Mr. Trabelsi’s case, his claims challenging the government’s detention of him would fail. “Reviewing claims that the government is holding someone unlawfully is at the core of the judicial function, and we’re heartbroken for our client that the court got this so wrong,” said Brett Max Kaufman, senior staff attorney with the ACLU’s Center for Democracy. “The government’s arguments in defense of Mr. Trabelsi’s detention makes a hash of the Constitution, immigration laws, and its own extradition treaty.” In 2013, the United States forcibly extradited Mr. Trabelsi from Belgium to face criminal charges in the United States. In July 2023, after almost 10 years of highly restrictive pretrial detention, a federal jury cleared Mr. Trabelsi of all charges. But instead of releasing Mr. Trabelsi or returning him to Belgium, the U.S. transferred him to immigration detention, wrongly treating him as an applicant for admission and placing him in the deportation process. Over the years, the Belgian government has issued multiple formal diplomatic requests asking the U.S. to facilitate his return, but the U.S. has refused to send him back. Mr. Trabelsi filed a lawsuit challenging the government's authority to detain him. He also sought immediate improvements to his detention conditions. Those claims were not part of the court’s ruling today, and will continue to be litigated on a separate track. “Mr. Trabelsi only wants to return to Belgium after being illegally extradited to the United States, held for ten years, and then acquitted by a jury of any crimes,” said Nicole Hallett, clinical professor of law and director of the Immigrants’ Rights Clinic at the University of Chicago Law School. “He cannot be held indefinitely and we will continue to fight to make sure that justice ultimately prevails.” Mr. Trabelsi is represented by the American Civil Liberties Union, the University of Chicago Law School’s Immigrants’ Rights Clinic, the ACLU of Virginia, and Professor Jonathan Hafetz of Seton Hall Law School. The complaint in Trabelsi v. Crawford was filed against Jeffrey Crawford, warden of the Farmville Detention Center where Mr. Trabelsi is being held; Liana Castano, ICE field office director for the Washington Field Office; Alejandro Mayorkas, secretary of the Department of Homeland Security; and Merrick Garland, U.S. attorney general.