Pushing fear and surveillance

First of all, it’s spooky and disconcerting to see one of our largest and most prominent companies teaming up with law enforcement to push surveillance technology on American communities. Recent reporting has revealed that Amazon helps police departments give free or discounted Ring cameras to residents, gives police a portal for requesting video and special access to their social app “Neighbors” (which helps neighbors share video clips), and coaches police departments on how to get users to agree to turn over the footage. In turn, some police departments have agreed to promote Ring cameras and the Neighbors app and, according to a document obtained by Gizmodo, even to give the company the right to approve or censor what police departments say about Ring. Amazon has contracts with over 400 police departments around the country. (Ring has released a map of those departments.)

Police officers are public servants — and not just any public servants but ones entrusted with enormous powers including, in certain situations, the power to ruin people by invading their privacy. Allowing officers to serve as a de facto sales force for a company selling surveillance devices is a betrayal of police departments’ duty to serve the public first. It is also a betrayal to allow that company to shape how departments communicate with the public about their technology programs.

Crime rates today are at historic lows. As the Brennan Center puts it, Americans are “safer than they have been at almost any time in the past 25 years.” Yet Ring has used fear-mongering advertising and information campaigns to drum up sales. As USA Today points out, “Amazon's promotional videos show people lurking around homes, and the company recently posted a job opening for a managing news editor to ‘deliver breaking crime news alerts to our neighbors.’” Amazon also asks police departments to give the company special real-time access to emergency dispatch (911) data so that it can pump out these crime alerts all the more efficiently, giving people an exaggerated sense of crime in their community. (This is also another example of a weirdly close interconnection between police and this giant company.) The result is that, as the Washington Post puts it, the “Neighbors feed operates like an endless stream of local suspicion.”

Let’s be clear: individuals have a First Amendment right to take photographs of things that are plainly visible in public places, including government facilities, infrastructure, and police officers in public (all of which rights we at the ACLU have defended in court after individuals were illegally arrested). They certainly have a right to photograph their property in front of their front door. 

All that said, more pervasive private cameras do erode our privacy, and it is dismaying to see two powerful institutions in American life (Amazon and law enforcement) so actively and concertedly pursuing their mutual interest in saturating American communities with surveillance cameras.

Centralizing video in the cloud

When they first began to proliferate, we pointed out that distributed private surveillance cameras are better than centralized government surveillance networks for privacy and civil liberties. Distributed and isolated private cameras, we reasoned, deprive the government of suspicionless mass access to footage and the ability to do mass face recognition, wide-area tracking, and other analytics on that footage. They also place a middleman between the government and surveillance recordings, not only requiring police to go through a process to access particular footage, but also make it possible that, if the police try to request footage for abusive or unclear purposes, at least some owners may decide not to comply. (If the police have probable cause to believe that a camera contains evidence of a crime and the owner refuses to turn it over, they can go to a judge and get a warrant.)

However, the rise of cloud-connected cameras threatens to reverse the advantages of decentralized surveillance by re-centralizing the video collected across a community and removing the intermediary role that residents can play in checking surveillance abuses. Police officers have been quoted in press accounts as saying that when residents won’t agree to share video with the authorities, police can go to Ring and “just bypass them.” Amazon says that its policy is not to share video with police without user permission or a valid search warrant. But that’s Amazon’s policy according to Amazon, which leaves customers dependent on their policies and promises.

Unlike with video stored at home, a Ring customer never really can be sure with whom cloud-stored video is being shared. We know that Ring gave workers access to every Ring camera in the world together with customer details. Other companies offering similar services have also granted such access including Google, Microsoft, Apple, and Facebook.

Ring’s Neighbors App has also raised issues of racial profiling, for example, when individuals use the social app to circulate video to their neighbors of people who they deem suspicious because of their race. (“There’s somebody in our neighborhood who doesn’t belong.”) That can have the effect of intensifying the effects of racism and raises the question of how and whether police account for that racism in how they interact with the platform.

Another problem is that many people are not going to feel like they can say no to law enforcement. A police “request” of a resident to voluntarily turn over video footage will never be entirely uncolored by coercion and will often come across as a demand. Ring’s email asking customers to share video, for example, sounds much more like a directive than a request. It includes “A message from Detective Smith” declaring, “This is a time-sensitive matter, so please review and share your Ring videos as soon as possible.” Besides, some police departments have, in return for camera giveaways, reportedly required recipients to agree to turn over any camera footage on request. (Amazon says it does not support such agreements, but it’s unclear how much say the company has on the matter.)

Localities should reject agreements between Ring and their police departments. And, at a minimum, residents should scrutinize those arrangements closely and ask hard questions about what kind of community they want to create, with how much surveillance, and how a Ring partnership will play into that vision. As always, we also recommend that communities enact a law requiring their police departments to be transparent about, and receive permission for, any police use of surveillance technology (which would include agreements with Ring).

Do you really want a doorbell camera?

Should you buy a doorbell camera? This is an individual decision and no doubt it can be a handy device for some people. But if you’re thinking about installing one, you should go in with your eyes wide open — especially if you’re considering a camera that is connected to the Internet.

• Consider the risks. People often buy cameras because they are seeking empowerment and control over what happens in their homes. But consumers need to be aware that such power can be flipped against you. Internet-connected home cameras carry all the risks of other “Internet of things” devices: the risk of exposing elements of your home life to the government, to the company that makes your device, and to hackers. Researchers have already found a major vulnerability (now fixed) in the Ring doorbell. And keep in mind that while a doorbell cam will record others at your front door, it will also record your own comings and goings and “pattern of life” and those of your family members.
• Be clear on what you want a doorbell camera for. Do you just want a tool to tell you who is or was at your door? Or do you want an app that has been conceived, designed, and marketed as a police-empowering “crime-stopping mission”? Ring, for one, is clear that it aims to be the latter: company founder Jamie Siminoff writes in grand terms of crime reduction being a “clear and enduring” mission for his company. Ring also describes its anti-crime mission using worrisomely militaristic rhetoric of “going to war.” You may want a camera for personal convenience or security, but do you also want to contribute to the creation of a broad surveillance infrastructure in your community that may be used in abusive ways?
• Consider whether you want cloud storage. As the saying goes, “There is no cloud; it’s just somebody else’s computer.” When you take video and store it on a device in your home, you have total control over it: how long it’s kept, whom it’s shared with, and when (unless the police come knocking with a warrant signed by a judge). But once you store that video in the cloud, you reduce your own physical and legal control over your camera and increase the power of companies and government. Ring’s cameras allow owners to view live video but do not let them review, share, or save videos unless they get a cloud subscription. If you choose to buy a camera, consider buying one with local storage of video data, which reviewers indicate is just as cheap and easy-to-use as cloud-based cameras.
• Consider the ethical issues. If you choose to install a camera, think about where you point your camera and what it records. Do you need to record public areas like sidewalks and streets? Some cameras allow you to virtually block out parts of a field of view so they are not recorded. Some people install the cameras using a wedge to control the direction it points. Don’t record your neighbors’ property. And when and if capabilities such as face surveillance and video analytics become available, consider not deploying those. Amazon has already applied for a patent revealing the company is at a minimum thinking about how to combine their Ring camera infrastructure with their Rekognition face surveillance infrastructure, and Ring has also researched such efforts.

Surveillance is always a matter of power. Generally speaking, it increases the power of those doing the surveillance at the cost of those who are subject to it. People buy cameras because they want to empower themselves by seeing who is at their door — a legitimate aim. But as with all power, consumers should use the power of surveillance responsibly — and beware that the tool doesn’t get turned on them and end up empowering somebody else.

On Thursday, the U.S. Court of Appeals for the Ninth Circuit became the first appellate court in the nation to directly address the privacy harms posed by face recognition technology. The decision is a significant advance in the fight against the threats of face surveillance, sounding the alarm on the potential for this technology to seriously violate people’s privacy.

In Patel v. Facebook, a group of Facebook users from Illinois allege that Facebook violated the Illinois Biometric Information Privacy Act (BIPA) by using face recognition technology on the users’ photographs without their knowledge and consent. BIPA is the oldest and strongest biometric privacy law in the country, requiring companies to obtain informed consent before collecting a person’s biometric identifiers, including face recognition scans. Importantly, the law provides individuals in Illinois with a right to sue for damages if a company has violated their rights.

Facebook’s primary argument in the case was that in order to establish “standing” to sue, the plaintiffs should have to demonstrate some concrete injury beyond a violation of BIPA's requirement of notice and consent. As we argued in an amicus brief last year, surreptitious use of face recognition technology does cause harm, by subjecting people to unwanted tracking and by leaving them vulnerable to data breaches and invasive surveillance. Given the rapid proliferation of face surveillance technology in recent years, it is critical that Illinoisans are able to enforce BIPA’s protections against unwanted collection of their biometric information. A requirement that a person must demonstrate monetary loss or similar injury in order to sue would seriously undermine BIPA’s intent to safeguard against abusive collection of biometric data in the first place.

In Thursday’s ruling the Ninth Circuit agreed, holding that “the development of a face template using facial-recognition technology without consent (as alleged here) invades an individual’s private affairs and concrete interests.” 

To reach that conclusion, the court looked not only to the long-recognized entitlement of people to sue private parties over violations of common-law privacy rights, but also to evolving Fourth Amendment protections against law enforcement surveillance. This includes the landmark decision in Carpenter v. United States, an ACLU case about police access to cell phone location data decided last year. As the Ninth Circuit explained, drawing from language in Carpenter, “[i]n its recent Fourth Amendment jurisprudence, the Supreme Court has recognized that advances in technology can increase the potential for unreasonable intrusions into personal privacy… As in the Fourth Amendment context, the facial-recognition technology at issue here can obtain information that is ‘detailed, encyclopedic, and effortlessly compiled,’ which would be almost impossible without such technology.”

The Ninth Circuit’s ruling is important not only because it explains why surreptitious use of face recognition by corporations harms people’s privacy interests, but also because it puts law enforcement on notice that recent Supreme Court cases regulating other forms of electronic surveillance have something to say about face surveillance technology.

Indeed, the potential for this technology to enable the government to pervasively identify and track anyone (and everyone) as they go about their daily lives is one of the reasons the ACLU is urging lawmakers across the country to halt law enforcement use of face surveillance systems. This decision puts both corporations and law enforcement agencies on notice that face surveillance technology poses unique risks to people’s privacy and safety.

The Ninth Circuit’s ruling also demonstrates the importance of privacy laws including strong private rights of action, affirming people’s right to turn to the federal courts for redress when their rights have been violated. Without a right to sue, privacy guarantees will often prove ephemeral. As state legislatures and Congress move forward on consumer privacy legislation, they should follow Illinois’ lead by including private rights of action in these statutes.

By Udi Ofer, Deputy National Political Director and Director of Campaign for Smart Justice, ACLU

Almost five years to the day of the fatal police shooting of Michael Brown in Ferguson, Missouri, Attorney General William Barr descended on New Orleans to deliver a major policy address. His speech dismissed police violence and espoused a dangerous vision for America — one in which ‘90s era tough-on-crime politics shape policies and pro-civil rights attitudes are derided as “anti-police.”

Speaking to the Fraternal Order of Police (FOP), Barr used war analogies to describe the work of police officers, painting opponents of police brutality as a “vocal minority that regularly attacks the police.” He minimized the type of police violence and racism — like that which took Michael Brown’s life — as being the result of “a few bad apples.” This phrase has been used as code to distract from deeply systemic issues that protect and perpetuate the devaluing of Black and brown lives in the criminal legal system. 

Barr suggested that the problem of police violence is with the victims for not complying with police demands — an assertion recognized as odiously false by those who followed the murders of Philando Castile and many others. He went on to disparage the new wave of reform-oriented prosecutors who won elections by espousing fair and smart justice policies as “anti-police” and “dangerous to public safety.” 

Yet, to those who have seen the epidemic of police abuse and the devastating impact of mass incarceration, we know that Barr is wrong. His speech was a slap in the face to families who have suffered from police violence and to voters who have organized around and elected prosecutors committed to tackling mass incarceration.

It should come as little surprise that Barr advocates for the death penalty and even greater mass incarceration. In 1992, while serving his previous term as AG, Barr published a report titled, “The Case for More Incarceration,” arguing for more prisons and longer sentences. The report was a major boost to mass incarceration in America as it provided the Justice Department stamp of approval. Based on this week’s speech, little has changed in Barr’s views since 1992.

Barr delivered his speech before a friendly crowd of FOP officers because he knew that his rhetoric wouldn’t fly with a general audience. Polls consistently show that Americans on both the left and right prefer smart justice policies: Three-quarters of voters say they would vote for a candidate committed to criminal justice reform; eighty-nine percent of voters support prosecutors who want to cut mass incarceration.

The reform-oriented prosecutors derided by Barr ran on sensible policies of using incarceration only as a last resort. They ran on the commonsense idea to offer rehabilitation services to people suffering from drug addiction, rather than incarceration. They promised to end the criminalization of poverty and predatory practices like cash bail and fines and fees that lead to incarceration because of inability to pay.

Barr would have you believe that reform policies negatively impact public safety, but decades of data show that, actually, the opposite is true: Between 2007 and 2017, 34 states have reduced both incarceration and crime. Keeping families together and people out of prison and jail is key to building healthy, safe communities. Yet more is needed, as the United States continues to imprison its people at rates much higher than comparable countries.

The policies espoused by Attorney General Barr created today’s mass incarceration crisis,  disproportionately locking up people of color and poor people. The War on Drugs and a tough-on-crime mentality have devastated communities across the nation, and have led to the United States being the world’s biggest jailer, with 2.3 million people incarcerated on any given day. In fact, the state where Barr delivered his speech, Louisiana, has the second-highest incarceration rate per capita in the world. Until the implementation of recent bipartisan reforms, which Barr would have almost certainly opposed if in office, Louisiana had the highest incarceration rate in the world.

Barr’s speech before a conference room of police officers was not about public safety. It was about creating a climate of fear, where police officers are “manning the ramparts” between — as he put it — “chaos and carnage on the one hand, and the civilized and tranquil society we all yearn for,” and incarceration is the primary solution to all of society’s problems, including mental illness, poverty, and drug addiction.

What scares Barr the most is that the politics of mass incarceration are beginning to change. Fear-mongering rhetoric no longer  resonates with voters in the ways that it did in the ‘80s and ‘90s. Americans have been influenced by movements like Black Lives Matter, and understand the devastating impact that mass incarceration has had on millions of lives. Voters recognize that the War on Drugs and Broken Windows policing have failed: Seventy-eight percent are more likely to vote for a candidate who supports criminal justice reform, including 71 percent of Republicans.

Americans are ready for change. We are not proud of the fact that we have less than five percent of the world’s population, yet more than 20 percent of the world’s prisoners. This is why in 2018 alone, criminal justice reform won in the ballot box, and 122 criminal justice reform bills passed in state legislatures that will result in thousands of fewer people incarcerated.

Attorney General Barr is stuck in the 1990s. But Americans have moved forward, and we are ready for fewer prisons and more dignity and humanity in our justice policies, not to mention the safety that comes along with it.