By Jay Stanley, Senior Policy Analyst, ACLU Speech, Privacy, and Technology Project

We are surrounded by surveillance cameras that record us at every turn. But for the most part, while those cameras are watching us, no one is watching what those cameras observe or record because no one will pay for the armies of security guards that would be required for such a time-consuming and monotonous task.

But imagine that all that video were being watched — that millions of security guards were monitoring them all 24/7. Imagine this army is made up of guards who don’t need to be paid, who never get bored, who never sleep, who never miss a detail, and who have total recall for everything they’ve seen. Such an army of watchers could scrutinize every person they see for signs of “suspicious” behavior. With unlimited time and attention, they could also record details about all of the people they see — their clothing, their expressions and emotions, their body language, the people they are with and how they relate to them, and their every activity and motion.

That scenario may seem far-fetched, but it’s a world that may soon be arriving. The guards won’t be human, of course — they’ll be AI agents.

Today we’re publishing a report on a $3.2 billion industry building a technology known as “video analytics,” which is starting to augment surveillance cameras around the world and has the potential to turn them into just that kind of nightmarish army of unblinking watchers.

Using cutting-edge, deep learning-based AI, the science is moving so fast that early versions of this technology are already starting to enter our lives. Some of our cars now come equipped with dashboard cameras that can sound alarms when a driver starts to look drowsy. Doorbell cameras today can alert us when a person appears on our doorstep. Cashier-less stores use AI-enabled cameras that monitor customers and automatically charge them when they pick items off the shelf.

In the report, we looked at where this technology has been deployed, and what capabilities companies are claiming they can offer. We also reviewed scores of papers by computer vision scientists and other researchers to see what kinds of capabilities are being envisioned and developed. What we found is that the capabilities that computer scientists are pursuing, if applied to surveillance and marketing, would create a world of frighteningly perceptive and insightful computer watchers monitoring our lives.

Cameras that collect and store video just in case it is needed are being transformed into devices that can actively watch us, often in real time. It is as if a great surveillance machine has been growing up around us, but largely dumb and inert — and is now, in a meaningful sense, “waking up.”

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Computers are getting better and better, for example, at what is called simply “human action recognition.” AI training datasets include thousands of actions that computers are being taught to recognize — things such as putting a hat on, taking glasses off, reaching into a pocket, and drinking beer.

Researchers are also pushing to create AI technologies that are ever-better at “anomaly detection” (sounding alarms at people who are “unusual,” “abnormal,” “deviant,” or “atypical”), emotion recognition, the perception of our attributes, the understanding of the physical and social contexts of our behaviors, and wide-area tracking of the patterns of our movements.

Think about some of the implications of such techniques, especially when combined with other technologies like face recognition. For example, it’s not hard to imagine some future corrupt mayor saying to an aide, “Here’s a list of enemies of my administration. Have the cameras send us all instances of these people kissing another person, and the IDs of who they’re kissing.” Government and companies could use AI agents to track who is “suspicious” based on such things as clothing, posture, unusual characteristics or behavior, and emotions. People who stand out in some way and attract the attention of such ever-vigilant cameras could find themselves hassled, interrogated, expelled from stores, or worse.

Many or most of these technologies will be somewhere between unreliable and utterly bogus. Based on experience, however, that often won’t stop them from being deployed — and from hurting innocent people. And, like so many technologies, the weight of these new surveillance powers will inevitably fall hardest on the shoulders of those who are already disadvantaged: people of color, the poor, and those with unpopular political views.

We are still in the early days of a revolution in computer vision, and we don’t know how AI will progress, but we need to keep in mind that progress in artificial intelligence may end up being extremely rapid. We could, in the not-so-distant future, end up living under armies of computerized watchers with intelligence at or near human levels.

These AI watchers, if unchecked, are likely to proliferate in American life until they number in the billions, representing an extension of corporate and bureaucratic power into the tendrils of our lives, watching over each of us and constantly shaping our behavior. In some cases, they will prove beneficial, but there is also a serious risk that they will chill the freedom of American life, create oppressively extreme enforcement of petty rules, amplify existing power disparities, disproportionately increase the monitoring of disadvantaged groups and political protesters, and open up new forms of abuse.

Policymakers must contend with this technology’s enormous power. They should prohibit its use for mass surveillance, narrow its deployments, and create rules to minimize abuse.

Read the full report here.

By Lindsey Kaley, Staff Attorney, ACLU

Since taking office, the Trump administration has launched a systematic attack on laws that exist to protect all of us from discrimination when we seek basic health care.  Today, we’re taking them back to court over it.

Last month, the Department of Health and Human Services (HHS) resurrected a policy that allows health care providers — including hospitals, clinics, and doctors’ offices — to use their religious beliefs to withhold critical information and obstruct patient’s access to health care. In 2009, the ACLU challenged the original version of the rule. Ten years later, we filed a lawsuit to, once again, preserve access to evidence-based, nonjudgmental health care and ensure that medical standards — not religious belief — guide health care.

There is no better example of “a solution in search of a problem” than this policy. In finalizing this rule, the government highlighted a number of cases the ACLU brought to protect patients from discrimination. The rule cites three of our clients: Tamesha Means, who was turned away three times by a religiously affiliated hospital in the midst of a miscarriage of a non-viable fetus, without being provided even the basic counseling that her own life could be in jeopardy if she did not access an emergency abortion; Rebecca Chamorro, who was denied a standard postpartum tubal ligation at the religiously affiliated hospital where she was scheduled to give birth — although her doctor was ready and willing to perform it; and Evan Minton, whose hysterectomy was cancelled by a religiously affiliated hospital the day before it was scheduled to take place when the hospital learned he is transgender.  

According to the Trump administration, the problem is not that Tamesha Means developed a life-threatening infection, that Rebecca Chamorro had to undergo an unnecessary surgical procedure, or that Evan Minton was denied essential gender-affirming care. The problem is that they all stood up and challenged the institutions that put religious directives before their health and wellbeing.

This rule would do nothing to prevent the harm these patients suffered as a result of being denied care. Indeed, by transforming the hospitals’ unlawful act of turning patients away into a protected exercise of religious liberty, this rule would only cause more patients to be discriminated against and deprived of the care they need. That’s not just a bug in the system — it’s the whole point.

We raised exactly these problems when HHS first proposed this rule in 2018. But HHS moved forward with it anyway, resulting in an even more extreme final rule. HHS has even declined to clarify whether the rule applies in emergency situations, potentially leading to refusals of care with dire consequences.

The administration claims this rule is needed to protect religious liberty, but religious liberty does not include a license to discriminate, to deny essential care, or to cause harm to others. There are already safeguards in place to protect employees’ religious beliefs. All this rule does is encourage discrimination against patients, sending a clear message about what discrimination is tolerable and who is worthy of protection.

Like so many of this administration’s policies, the refusal of care rule would have its most profound impact on access to reproductive health care, particularly for the millions of patients — who are disproportionately Black and Latinx — seeking options counseling and a referral for abortion in the Title X program.  Under the rule, if a pregnant patient requests counseling, a nurse could refuse to provide information about abortion, leaving that patient without a complete picture of the available options.  The clinic where the nurse works may not know that the patient did not receive complete counseling because, under this policy, the clinic is only permitted to ask staff members about their objections to doing their jobs once a year. 

And even if the clinic learns that the nurse is refusing to provide complete options counseling to patients, the rule is so absolute that the clinic could have no option but to hire additional staff to provide the services or risk losing all its federal funding if it violates the rule. Because that is unrealistic for most clinics operating under extremely tight budgets, practically this means the clinic would likely have to cut services, diminish the quality of those services, or discontinue them altogether.

The refusal of care rule’s failure to account for patients’ wellbeing not only flies in the face of everything the Title X program stands for, it also undermines basic principles of medical ethics and informed consent. 

The ACLU and NYCLU brought this challenge with two organizations who have been leaders in this fight: the National Family Planning & Reproductive Health Association (NFPRHA), the lead national advocacy organization for the Title X family planning program representing hundreds of health care providers across the country; and Public Health Solutions, Inc. (PHS), the largest public health nonprofit serving NYC, including tens of thousands of uninsured and underinsured New Yorkers each year. We refuse to stand by as access to health care is pushed further out of reach for this country’s most vulnerable populations.  

The refusal of care rule violates the Constitution and numerous federal legal protections for patients and so the rule should be prevented from going into effect.  Contrary to what this government would have you believe, the “problem” is not that people are seeking basic health care; the problem is that the Trump administration is doing everything it can to undermine access to that care as well as to embolden discrimination in the process.

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

The 1994 federal crime bill that created tough new criminal sentences and incentivized states to build more prisons and pass truth-in-sentencing laws is getting new scrutiny during this 2020 election cycle.
 
Defenders of the law deny that it created the problem of mass incarceration, a term used to describe the fact that the United States incarcerates more of its people — disproportionately Black — than any other nation in the world. They argue that mass incarceration was a problem before the law passed. And regardless, they argue, the federal government has limited jurisdiction over the problem, as 90 percent of people in prison and jail are under state jurisdiction.
 
So who’s right?
 
It’s true that the federal government has limited jurisdiction over mass incarceration and that incarceration rates were already high by 1994. But it’s also true that following passage of the federal crime bill, incarceration rates continued to climb for an additional 14 years.
 
The federal crime bill did not trigger mass incarceration, but it certainly encouraged mass incarceration to grow even further. The 1994 law was the largest crime bill in the history of the United States. It was meant to make a statement, and it did — in at least two ways.
 
First, the 1994 crime bill gave the federal stamp of approval for states to pass even more tough-on-crime laws. By 1994, all states had passed at least one mandatory minimum law, but the 1994 crime bill encouraged even more punitive laws and harsher practices on the ground, including by prosecutors and police, to lock up more people and for longer periods of time.
 
Second, the 1994 law shaped Democratic Party politics for years to come. Under the leadership of Bill Clinton, Democrats wanted to wrest control of crime issues from Republicans, so the two parties began a bidding war to increase penalties for crime, trying to outdo one another. The 1994 crime bill was a key part of the Democratic strategy to show that it can be tougher-on-crime than Republicans.

While Republicans continued their Willie Horton-style fear-mongering that pushed for more punitive policies in the states, the official 1996 Democratic Party platform, which was meant to provide a vision for the Democratic Party nationwide, relied heavily on the 1994 law to display their tough on crime credentials. An entire section in the platform is dedicated to "tough punishment," taking pride in the fact that the Democratic Party passed tougher sentencing laws and provided more federal funding for prisons in the states.

The platform encouraged states to pass truth-in-sentencing laws, bragged about instituting the death penalty for nearly 60 more crimes, and even encouraged the prosecution of young people as adults. This platform remained largely in place until 12 years later, when in 2008, the tone and substance began to change under new leadership in the party. Coincidentally, incarceration rates peaked in 2008.
 
The right way to view the 1994 crime bill is as the moment when both parties, at a national level, fully embraced the policies and political posturing that exacerbated the mass incarceration crisis we are trying to fix today.
 
In 2019 and beyond, the best course of action for politicians who want to promote a smart justice-oriented vision for America is to disavow the 1994 crime bill and instead support a 50% cut in incarceration rates on the federal and state levels. Those running for federal office should pledge to use their power to close prisons once in office. That would be the best way to counteract the effects of the 1994 crime bill and prove that you don’t believe in the discredited tough-on-crime policies of the past.