By Neema Singh Guliani, ACLU Senior Legislative Counsel

We already know that the FBI has a massive facial recognition apparatus. We know the agency has slowly been working towards getting access to photos of almost every American to run through this system. We also know it is building this mass surveillance infrastructure without clear authorization from Congress, safeguards, or public input.

The fact that face recognition technology, which can be readily abused, has been deployed by federal agencies largely in secret should give us all pause. The technology gives government agencies the unprecedented power to track who we are, where we go, and who we know. Companies marketing this technology to the government boast that it can be used to track people in real-time, reconstruct past movements from video footage, or identify a hundred individuals from a single photo. This threatens to create a world where people are watched and identified as they attend a protest, congregate outside a place of worship, visit a medical provider, or simply go about their daily lives.

At a House Oversight Committee hearing this week with an FBI witness, we learned new details that further confirm our fears that the FBI’s face recognition apparatus continues to balloon, threatening our fundamental liberties. The details also underscore the urgent need for Congress to put the brakes on law enforcement use of this powerful technology.

Here are some of the most concerning details we learned from the hearing:

1. The FBI’s massive facial recognition apparatus continues to expand and can now match against over 640 million photos.

The FBI now has the ability to match against or request matches against over 640 million photos — a number that Rep. Jim Jordan (R-Ohio) noted is larger than the total population in the US. This includes driver’s license photos from 21 states, including states that do not have laws explicitly allowing their driver’s license repositories to be used in this way. These numbers show that the FBI is moving closer to having the capability to run face recognition searches against photos of virtually every American. 

The FBI is also running large numbers of face recognition searches. According to the FBI, from October 2017 to April 2019, the FBI ran over 152,000 searches of its face recognition system that matches against mugshots. That number does not even include searches on external databases, like passport photos. It is also unusually high when compared to the fact that there were only 10,232 criminal convictions stemming from FBI-led investigations in fiscal year 2017.

2. The FBI claims it can use face recognition on individuals without a warrant or probable cause.

The FBI says that it only performs face recognition as part of authorized investigations or open assessments. But that doesn’t make it any better. Under FBI guidelines, agents can open an assessment without any fact-based suspicion whatsoever. Even preliminary investigations may be opened only in cases where there is mere “information or allegation” of wrongdoing, which the FBI interprets to cover mere speculation that a crime may be committed in the future. Thus, even if the FBI strictly adhered to its internal policies, they would still have broad discretion to use face recognition without a warrant or probable cause, making the technology even more susceptible to widespread use and abuse.

3. The FBI doesn’t even track basic statistics to measure the technology's efficacy.

The FBI claims that face recognition can help to “protect public safety.” But, as their testimony before Congress this week revealed, the FBI doesn’t have the data to back up this claim. During questioning, the FBI confirmed that it does not track how many times face recognition has led to a conviction. Additionally, the agency does not track how many times the use of face recognition leads to arrests, including arrests of individuals ultimately acquitted. 

There is good reason to question the FBI’s efficacy claims. A report on the use of face recognition in the UK found that the technology led to false matches over 90 percent of the time. The fact that the FBI doesn’t even track basic data about efficacy calls into question how they can conclude it has positive law enforcement value.

4. The FBI cannot even confirm that it complies with its constitutional obligations.

The government is required to provide notice to criminal defendants when they are identified by face recognition or where match information may be considered exculpatory. Evidence has suggested the FBI is not complying with this obligation — and this hearing provides more cause for alarm. Twice during the hearing, the FBI was specifically asked whether they notified criminal defendants when other individuals also returned as a face recognition match, which could support defendants’ claims that they are innocent. The FBI witness said she should not confirm that this information was always provided. The FBI also failed to clearly respond to questions regarding whether they even notified defendants in cases where face recognition contributed to their arrest or prosecution. 

5. The FBI won’t reveal information about the companies it has communicated with about face recognition products.

The FBI was asked to name “the companies who lobby or communicate” with the FBI about its face recognition products. The FBI witness evaded this question, and that is troubling. We have already seen examples of companies selling and marketing irresponsible uses of face recognition to law enforcement. For example, Amazon has pushed the use of face recognition in body cameras, which are intended to be tools of accountability, not surveillance. Given this, additional oversight of private companies who sell and market this technology is critical. Congress should press the FBI to provide information on the companies it has communicated with about face recognition, and the information these companies have provided to government decision makers on the efficacy, bias, and potential uses of their face recognition products.

The ACLU has long sounded the alarm over the FBI’s use of face recognition and, along with over 60 other groups, has called for Congress to halt federal law enforcement use of this technology until Congress debates what, if any, uses should be allowed. The hearing this week provides further evidence that such a moratorium is needed to prevent harm and safeguard our rights.

By Kate Ruane, Senior Legislative Counsel, ACLU

Congress just got yet another reminder that the First Amendment right to political boycotts is alive and well in the United States, and any legislative attempt to infringe on that right puts them squarely against the Constitution.

Last week a federal district court in Texas blocked as unconstitutional a state law that required government contractors to certify that they did not boycott Israel and would not do so over the course of their contract. With courts in Arizona and Kansas issuing similar rulings last year, that’s now three federal courts that have protected the right to engage in First Amendment-protected political boycotts—including boycotts of Israel and Israeli settlements.

The continued reminders by the courts that the right to boycott is protected under the First Amendment is a stinging rebuke of state legislators and members of Congress who have repeatedly attempted to strip the American people of that very right. 

More than two dozen states have adopted laws and policies restricting boycotts of Israel in the past four years. Their target is boycott, divestment and sanctions (BDS), a global collection of boycott campaigns that seek to apply economic and political pressure on Israel to comply with international law. Human Rights Watch estimates that over 250 million Americans now live in states with such anti-boycott laws and policies. And if Congress gets its way, soon every American could.

Members of House Appropriations Committee voted today on an amendment proposed by Rep. Graves to a routine government funding bill that would allow federal agencies to compel contractors to promise not to boycott Israel as a requirement of maintaining their relationship with the government. 

Fortunately, Rep. Nita Lowey, Chairwoman of the House Appropriations Committee, opposed the amendment, and the amendment failed. But this comes only a few months after a bipartisan group of 73 senators passed the Combating BDS Actas part of its first piece of legislation following the midterm elections. It would encourage states to create the very laws that three federal courts have blocked on free speech grounds. This includes laws like Texas’ anti-BDS law, which a federal judge just stated “threatens ‘to suppress unpopular ideas’ and ‘manipulate the public debate through coercion rather than persuasion.’” By enacting the Combating BDS Act, Congress would be sending a clear message that people who dare to disagree with their government should be penalized and stripped of opportunities otherwise available to them.

While the House has not taken up the bill, the fact that members of Congress even considered the bill, let alone passed it through one chamber, is gravely concerning. The bill makes a mockery of the constitutional principle that the people are free to protest for the causes they care about.

Members of Congress have also proposed criminal penalties for participation in political boycotts like BDS. The Israel Anti-Boycott Act, which Congress attempted to enact in several different ways last year, would amend a relatively obscure law, called the Export Control Reform Act, to ban participating in political boycotts of countries friendly to the United States when the boycott is called for by an international organization, such as the United Nations. Failure to comply with the ban could carry criminal penalties of up to $1 million. Earlier versions of the bill even carried jail time.

Not only would the bill take aim at boycotts of Israel, as clearly conveyed through the name of the bill (The Israel Anti-Boycott Act) as well as its text, its implications would go far beyond its stated intentions. If enacted, the legislation would give federal officials a new weapon to chill and suppress speech that they dislike or find unpopular because it would apply to any country friendly to the United States.

Consider, for example, if the United Nations advocated boycotting Saudi Arabia in response to the murder of Jamal Khashoggi, the Washington Post journalist. That would mean American companies, small business owners, and even non-profits and people acting on their behalf in support of the boycott could be subject to criminal penalties.

Fortunately, as the recent Texas case has shown, the courts will continue to defend the American people’s constitutional right to boycott, in accordance with established Supreme Court precedent. But, Congress should do the same. 

Regardless of their views on Israel-Palestine, or whether they support or oppose BDS or boycotting Israel, members of Congress should oppose any effort to restrict the right to engage in protected political boycotts. That means voting against the anti-BDS amendment proposed by Rep. Graves. It means opposing any effort to bring the Combating BDS Act to the floor in the House of Representatives. It means ensuring that bills like the Israel Anti-Boycott Act never again see the light of day. And it means fighting against any other legislative attempts to attack our First Amendment rights in – or out of – this context. 

Congress has a constitutional duty to defend and protect the rights of the American people, including the First Amendment right to participate in political boycotts—even boycotts of Israel. We expect them to fulfill that duty.

Eric Balaban, ACLU National Prison Project & Lauren Kuhlik, Equal Justice Works Fellow, ACLU National Prison Project

At 3 a.m., inside her solitary jail cell in Broward County, Florida, Tammy Jackson began having contractions. It took hours for corrections officers to reach a doctor, who said he’d check on Jackson when he came into work later that morning. By the time he arrived at 10 a.m., Jackson had delivered the baby alone in her jail cell.

Not only was Jackson incarcerated and isolated without medical care while giving birth, she was also doing so while living with serious mental illness.   A few months before her arrest, she had been so acutely ill she was involuntarily committed to a local psychiatric facility.  And furthermore, she was not even in jail because she had been convicted of a crime. Jackson was a pretrial detainee. 

She was being held in the jail under supposed medical monitoring in a unit for high-needs detainees. Still, she had to suffer through the physical and emotional trauma of labor and delivery alone, ignored by officers who heard but failed to heed her cries for help.

Her suffering is egregious. And we must ask a broader question about the Broward County Jail and the criminal legal system that feeds it: Why was Jackson even there?

People with mental illness make up close to 70 percent of those detained in women’s facilities. They are often arrested for behavior that is a product of living with mental illness and, due to mental illness or because they are disproportionately low income and homeless, they frequently are unable to afford bail or comply with pretrial release requirements. Then, once in jail, they often decompensate due to the harsh conditions they endure, including traumatic strip searches and long-term isolation in cells roughly the size of a parking space.

As we know from Jackson’s story, the callousness with which incarcerated women are treated extends to pregnancy care.

At the Broward County Jail, Jackson’s care was entrusted to Wellpath, the largest for-profit private correctional health care provider in the country, with annual profits approaching $1.5 billion. Wellpath has a long and sordid history of being sued for endangering and neglecting pregnant prisoners in their care. In one case, a Kentucky woman alleges that health care staff ignored her pleas for help after she began suffering from contractions at 21 weeks and passed a blood clot. Nearly two hours went by before an ambulance was even called.

The woman gave birth to her child while cuffed in the ambulance. Her child did not survive. And heartbreaking stories like these are not exceptions. They are pervasive.

Three years ago, a woman with serious mental illness gave birth in a cell, alone, at the jail in St. Thomas, U.S. Virgin Islands. That jail, like Broward County, is under a consent decree with the ACLU requiring minimally adequate health care. But despite this, the St. Thomas jail still allowed the woman to slip through the cracks. Jail staff recognized she needed to be hospitalized when she entered the facility, but declined to transfer her to the local psychiatric hospital. Her mental and physical health deteriorated in the ensuing weeks, as she refused to eat or take medications, including prenatal vitamins. Instead of hospitalizing her, the jail placed her in solitary confinement as punishment for resisting an escort. They then compounded the problem by failing to monitor her pregnancy needs or her food and medication intake.

Given the jail’s lack of care, it is not surprising that like Jackson, this woman gave birth in her solitary cell.  Only after giving birth was she transferred to a hospital where she received appropriate medical and mental health care, the kind of care she needed months before and that the jail should have provided. According to a psychiatric expert in the case, “[h]er condition improved markedly within a few days of being in the hospital[.]”

Imagine listening to a woman scream through the agony of labor, or watching her decompensate to the point of refusing to eat during late pregnancy, and not stepping in to help. It is unconscionable, and yet a reality in our criminal justice system.

Too many jails are ill-equipped to safely house and adequately treat women with serious mentally illness. Some people refer to jails as the largest psychiatric hospitals in America, but jails and prisons are not hospitals and corrections officers are not healthcare providers. The budgetary concerns, privatization of jail healthcare, and the dehumanizing treatment that pervades correctional facilities render them incapable of ever providing the full spectrum of minimal treatment that people with mental illnesses need.

Jackson’s story, and the stories of women like her, provides a heart-wrenching look into the damage that can be done when mental illness, pregnancy, and the carceral state collide. That anguish will continue until we stop criminalizing mental illness and start treating it.