By Alejandro Agustin Ortiz, ACLU Senior Staff Attorney & Adriel I. Cepeda Derieux, ACLU Senior Staff Attorney, Voting Rights Project

Over 100 years ago, the U.S. Supreme Court issued a series of rulings known as the Insular Cases that still prevent millions of people — overwhelmingly, people of color — from accessing certain constitutional rights and protections. These rulings continue to uphold systemic racism today.

In the Insular Cases, the Supreme Court spoke to whether, and to what extent, the rights and protections guaranteed by the Constitution applied to residents in the then-new territories of Guam, Puerto Rico, and the Philippines. In this string of cases decided from 1901 to 1922, the court described the territories’ inhabitants as “alien races” and “savage tribes.” The court based its views squarely on the presumed racial inferiority of the non-white people who lived there. In doing so, the Supreme Court showed obvious contempt for the predominately Asian, Black, Indigenous, Latinx, and Pacific Islander residents of these territories.

The Insular Cases are unabashedly racist, firmly rooted in white supremacy, and still haunt the day-to-day lives of millions of people. This is why today, the ACLU, along with a coalition of civil rights groups, sent a letter to the Biden administration urging them to condemn the these cases and stop relying on the precedent they set in present or future cases.

As usually understood, these decisions held that constitutional provisions and safeguards do not automatically apply to people living in the territories. The rationale for that view was explicitly race-based. In the leading Insular case, Downes v. Bidwell, the court considered whether the phrase “United States,” as used in a specific constitutional provision, included Puerto Rico. Informed by disdain for Puerto Rico residents, the court said it did not. The opposite result — acknowledging the Constitution fully applied in Puerto Rico — was too alarming to consider. As one justice put it, doing so would “inflict grave detriment to the United States,” indicating that affirming constitutional rights applied to people in a predominantly BIPOC-populated territory would be a threat to the broader country.

Since the United States’ founding, there was a long-held presumption that the Constitution’s protections would naturally apply in the nation’s territories. The court broke away from this practice with the Insular Cases to keep the new territories from enjoying full constitutional protections. When the U.S. acquired Florida in 1819, for example, few seriously questioned whether the Constitution applied there. Key differences between territories acquired before 1898 and those acquired later — particularly the people who lived there and their location — made all the difference to the court.

The later-acquired territories were, for the first time, populated mostly by people of color and so far from the U.S. mainland that they were unlikely to be settled by white people. To ensure the Constitution would not block U.S. expansion, the court made up a new doctrine — so-called “territorial incorporation” — that said some constitutional provisions and protections could be switched off in those islands and for those residents until Congress said otherwise.

Despite many justices criticizing this doctrine in the ensuing 120 years, the “territorial incorporation” doctrine still effectively allows federal courts to question, on a case-by-case basis, whether certain protections apply to the territories’ residents. In one 2016 case, a federal court wrongly cast doubt on the constitutional right of same-sex couples to marry in Puerto Rico. In another recent decision, a federal court of appeals held that U.S. agents did not need a warrant to search a person’s property as it arrived to the U.S. Virgin Islands from South Carolina. Because it was a so-called “unincorporated territory,” the court reasoned Congress could establish an “artificial customs border” between the U.S. Virgin Islands and the rest of the United States that would infringe on the rights of any person passing through.

Reliance on these racist cases must end. Unfortunately, the U.S. Department of Justice, a key voice federal courts regularly hear from, continues to depend on them. It hasn’t yet seen fit to renounce them, as it did with Korematsu v. United States, a case that rested on similarly odious racial assumptions. Instead, the DOJ relies on the Insular Cases even as it acknowledges, as it did recently at oral argument before the Supreme Court, that their reasoning and rhetoric are “obviously anathema,” alluding to the racist origin of the very doctrine the DOJ continues to rely on when convenient. This reliance on case law grounded in white supremacy contravenes the Biden administration’s stated goals of redressing systemic racism.

While dismantling systemic racism is a necessary but complicated goal, the Insular Cases give the Biden administration a perfect opportunity to back up words with action. The DOJ should publicly condemn the Insular Cases and stop relying on them in future court filings. The department’s refusal to disavow them when recently invited to do so by the Supreme Court perpetuates a painful legacy akin to Jim Crow, and risks undermining its credibility on issues of race. The presumed inferiority of territorial residents is archaic, offensive, and racist. It was wrong at the time of the Insular Cases, and cannot justify differential treatment today.

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

A face recognition and video analytics company has created a product that provides a stark reminder of the power of these technologies and how they are likely to be used over time by law enforcement, powerful corporations, and others, if we as a society allow it.

The technology in question involves video search, which we described in our 2019 video analytics report. In the past, video operators looking for something would have to manually scroll through many hours of video, but technology is increasingly automating such searches. In a presentation for subscribers of the surveillance research group IPVM, a company called Vintra presented on its technology for quickly searching through large stores of video footage

The relevant three-minute part of the full presentation is worth watching. In it, a company executive searches through a month’s worth of video footage captured by around 10 fixed cameras, plus body cameras, in a transit center in San Jose, California. He feeds the system with the photograph of a male subject, and the system does a face recognition search through all the stored video from that month and produces 23 snapshots of the man from the center’s cameras. Clicking on any of the snapshots plays the video in which he was captured.

Already, that’s a demonstration of the stunning new power that surveillance camera systems create when combined with face recognition and today’s search capabilities.

But there’s more. The Vintra executive then presses a button called “Find associates.” He selects a time period — he uses 10 minutes but it could have been shorter or longer — and then runs a new search. This search yields snapshots of 154 other people, each of whom was seen on camera within 10 minutes of the subject.

In other words, this system allows face recognition to be used to track not just one person, but to map out people’s associations with each other.

Of the people spotted with the subject in the demo, 150 appeared on camera with him only once, and another three appeared with him twice. One man, however, had 14 “co-appearances” with the subject — clearly not coincidence, but a result of some association between the two men. The system displayed snapshots of the 14 co-appearances, and clicking on them instantly played the video of the two of them together.

The men could be anything from co-workers to commuting partners to lovers. Perhaps clicking through to view their joint appearances would shed light on which. But whatever the case, their association has now been revealed to the prying eyes of this camera network and its operators. One of Vintra’s mottos is “Know what the cameras know,” and if this product lives up to the demo, it’s a spookily accurate slogan, not least because it captures the way that AI is allowing video cameras to “wake up” — rendering them able not just to dumbly record video, but increasingly to understand what they’re seeing.

With this kind of technology, as the Vintra pitchman put it, “You can really start building out a network. You may have one guy, that showed up a few times, that you’re interested in — you can start looking at windows of time around him to see who else is there at the same time, and build out the networks of those people.”

Too many conversations about surveillance focus on how information could be used in isolation against a specific individual. But analytics is a powerful tool, and when information is collected not about just one suspect, but about large numbers of people, we often forget that such data can be cross-referenced to create maps of associations. I wrote this piece in 2013 to try to hammer home that often non-intuitive point, but maps of people’s associations (called “social network analysis”) have long been a product of mass surveillance. It has been done using cellphone data by the NSA, and by the U.S. military overseas using wide-area aerial surveillance, for example.

Now, face recognition and other analytic techniques appear to have brought social network analysis to video surveillance. And who knows what purposes such mining could be used for. The Vintra pitchman told his security audience that his product “will plug in to BI tools” — referring to Business Intelligence, a catch-all buzzword referring to non-security uses of data such as competitive research and marketing: “You may be using the cameras for security, but 94, 96 percent of the time there’s no event that security’s interested in — but there’s always information that the system is generating on those that you can plug into your BI.”

The bottom line is that when we see a video camera today, we need to update our intuitions about what it’s capable of. It may no longer be just collecting inert and unused video, but, especially if that camera is part of a larger network, the data it collects could be mined for insights about our lives across space and time. Communities and policymakers considering the installation of surveillance cameras — especially camera networks — should take heed.