The Department of Commerce has convened a “multistakeholder process” between civil society groups (like the ACLU) and industry groups, with the aim of limiting face recognition as a tool of surveillance in our society by establishing common ground and creating agreement on core principles that would allow face recognition to be used in a controlled and responsible way.
The big question in such a process is: what does industry think? If you’re building powerful new surveillance technologies, what rules of the road will you accept to guide their operation and use?
Now we’ve got the beginnings of an answer to that question in the form of a whitepaper from the International Biometrics & Identification Association (IBIA), an industry group that represents the venders of powerful new tracking technologies such as face recognition and iris scanning. It’s the clearest indication I’ve ever seen of how the biometrics industry would like surveillance to expand.
We’re off to a rocky start. In its Privacy Best Practices Recommendations for Commercial Biometric Use, the IBIA essentially denies that there are any real privacy problems with biometrics and face recognition except for the basic need to be transparent and keep information securely.
The document really speaks for itself, so I’m just going to offer some quotes (in italics, followed by my own brief editorial notes).
- Anonymity and privacy are not synonymous terms. The former is forfeited if one chooses to live in society. (Pg. 5) This would be a surprise to many of our Founding Fathers who anonymously published the Federalist Papers, one of the foundational documents of our new constitutional government. Also isn’t it exactly what we expect when we venture outside—to be largely unknown? Forfeiting that means giving up an awful lot.
- In both one‐to‐one verification and one‐to‐many identification applications biometrics merely provides an identity result for the questions “are you who you claim to be?” or “who are you?” These results do not necessarily diminish privacy or profile a person. (Pg. 5) It’s hard to imagine how identifying a person who was previously anonymous does anything but diminish privacy—a literally faceless watcher now knows who I am. That can be used to invade my privacy in many ways, and of course also may become the basis of a profile.
- The facial template itself, like other biometric templates, provides no personal information. (Pg. 5) This is disengenuous because of course the facial template is key to identifying an individual. It is like saying that a social security number contains no personal information.
- Surveillance is already a part of our daily life, thanks to the digital age and tremendous increases in computational power. Facial recognition does not increase its use. (Pg. 8) Arguing that a powerful new surveillance technology doesn’t increase surveillance is silly. But the broader argument is very dangerous: that we just need to accept that we are already constantly surveilled and get over it. The technical tools to create a surveillance society already exist. If we accept that they are the new normal, we subvert the only things that can prevent mass spying: our fundamental values and norms.
- Under either class of common security surveillance video technology, it isn’t practical or possible to conceive of a “face stalking” application that can be accessed and run across all the video cameras in a surveillance system. Stalking, although thankfully infrequent, occurred before the advent of facial recognition technology, and unfortunately will continue to occur, whether facial recognition becomes a factor or not. (Pg. 9) This ignores the fact that a stalker could use their own camera to take a picture of a potential victim and then use face recognition technology to identify him or her. Think about what you could do with unregulated Google glasses.
- I will end with a quote that I don’t even understand: As we face new social, political, security, and economic challenges in the 21st century, it is fitting that identity assurance, the underpinnings of individual and collective security, benefit from biometric identity technologies that reflect the uniqueness of the men, women and children living in societies we strive to create and improve upon. (Pg. 6) Somehow I don’t think this is the value of uniqueness that most Americans cherish.
This document represents just one industry view, but it’s a powerful one because these are the people who are currently making and marketing these technologies. Other industry stakeholders, like Google and Facebook, have taken different, more responsible positions. The question is whether they want this to be the ”industry position.” The question for the rest of us is, if this is how the watchers want to treat us, what are we going to do about it?
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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.