Experts in autocracies have pointed out that it is, unfortunately, easy to slip into normalizing the tyrant, hence it is important to hang on to outrage. These incidents which seem to call for the efforts of the Greek Furies (Erinyes) to come and deal with them will, I hope, help with that. As a reminder, though no one really knows how many there were supposed to be, the three names we have are Alecto, Megaera, and Tisiphone. These roughly translate as “unceasing,” “grudging,” and “vengeful destruction.”

On March 4, the Project on Government Oversight released a report called “Facing the Future of Surveillance,” dealing with the state of the art, the direction of progress being made, and th implications of usage of facial recognition software. It is, if you download it, a 54-page document (though you won’t see page numbers at my link), 14 pages of which are end notes leading to sources.

The report was prepared by the Task Force on Facial Recognition Surveillance, a part of The Constitution Project, and author Jake Laperruque. POGO sort of came in as a publisher, to help give the work wide exposure, in “its role as the people’s watchdog.” Because

Local, state, and federal governments are amassing databases containing our fingerprints, DNA, retinal images, and photos of our faces on an unprecedented scale. New facial recognition technology could allow the government to use these databases to effortlessly determine the identity of everyone at a gathering or even throughout a city…. The law, however, has been slow to keep pace with the digital revolution and the perils it presents to fundamental rights and freedoms. 

So – what is facial recognition?

Facial recognition is a method of using computer software to identify individuals based on the features of their face. These systems use facial “nodal points”—such as the location of eyes in relation to the face as a whole—from a pre-identified photo or set of photos to create a unique “face print” for an individual.1 This face print acts as a baseline for an individual’s identification, and is used as a cross-check for identification against other photos or video footage. Facial recognition systems convert existing photos and photo databases into databases of face prints, and can use the prints in those databases to identify a large number of individuals.

There are differences between facial recognition and two other technologies, face matching and face clustering, both of which are less threatening to privacy and civil liberties than facial recognition. The differences are subtle and you can read them by clicking through. I want to move on to a rather shocking statement: “Roughly half of all adults in the United States have pre-identified photos in databases used for law enforcement facial recognition searches.”

That did take me by surprise – surely not half of all of us have had mug shots taken. I know I haven’t. But – I do have a driver’s license. Hmmm. And I used to have a military ID. And I have had various college IDs in my lifetime. All with photos. And then, there’s social media. At this point, I started thinking half might be a gross underestimate.

So who is using this technology? The FBI of course – but also ICE and the Border Patrol, two agencies which IMO are highly skilled at MISusung just about anything. (Amazon in particular is trying very hard to sell its version to ICE.) And then, there’s state and local law enforcement. And they don’t need to have their own equipment. Agencies that do have it are only too happy to share it. Probably at least a quarter of state and local agencies have the capacity now – if not in their own right, then through a partnering agency.

I don’t want to make China a bogeyman, at least not in isolation, because we are headed the same direction – but, in a recent test, China’s facial recognition dragnet was able to find a BBC reporter in seven minutes – in a city of 4.3 million people.

Obviously there are Constitutional – Fourth Amendment primarily – implications in this kind of technology and its use. It has been addressed by the Supreme Court in two cases – United States v Jones in 2912, and Carpenter v United States in 2018. On the former, in a concurring opinion, Justice Sotomayor warned that

permitting unrestricted use of innovative digital technologies that are “available at a relatively low cost such a substantial quantum of intimate information about any person whom the Government, in its unfettered discretion, chooses to track—may alter the relationship between citizen and government in a way that is inimical to democratic society.” 

The Carpenter decision was important for more than one reason, but this is one of them:

Traditionally information that the government could freely see was by nature not private, and not entitled to Fourth Amendment protections. But by saying that some surveillance power is simply too powerful to exist unchecked in a democracy, the Court upended this idea.

Did you read about this decision? In June? Quite frankly, I missed it entirely. Unfortunately, the court opted for a narrow rather than a broad ruling, which dilutes the principle somewhat. Also, I note, this decision was pre-Kavanaugh.

In a linked article, there’s an imagined “Day without the Fourth Amendment,” demonstrated what can be learned about people through technology we actually have, if the government were allowed to use it indiscriminately:

Brad Rayburn wakes up at 6:45 a.m. The government knows he woke up because he told his home assistant to turn off his alarm and start playing the news, and a few minutes later asked it about the day’s weather…. At 7:14, Brad Rayburn feeds his cat after taking a shower. The government knows this because the microphones on his phone, computer, and home assistant record the noises of a shower from 7:03 to 7:19, and then the cat meowing for several minutes until 7:15…. Brad leaves the office at 6:25 and walks home, jaywalking on two occasions. He purchases a six-pack of beer at a liquor store three blocks from his apartment. After he arrives at home at 7:13, his log indicates based on meowing recorded on the microphone of his phone that he immediately feeds his cat…. 

I do recommend clicking through to this link. It’s like a Twilight Zone episode – for those of us old enough to remember.

So far we’ve only talked about when surveillance techniques are accurate. But they aren’t always. And the report points out that they are less accurate for people of color and for women of all colors. Not surprising, but there it is. A link is also provided to a discussion including what, besides the Fourth Amendment, could be endangered if face recognition technology gets completely out of hand. (And, incidentally, I learned through this link that my driver’s license photo is not in the searchable databases, because no state in which I have ever held one is among the 16 states who allow theirs to be searched. That’s a relief. It’s a terrible photo.)

There are, of course, ways to jam facial recognition software, and I’ve shown a couple. Although, if you wear one of those looks to a protest or a march, I would not be surprised to hear afterwards that you had been stopped and interrogated specifically on that account.

The report closes with multiple recommendations – which, of course, most likely need to be included in a comprehensive package of criminal justice reform. I have thought on numerous occasions that Republican malfeasance, besides directly ruining life for ordinary people, has a side effect of keeping our best politicians so focused on such immediate needs as climate change and public health as to prevent them from tackling other things – like criminal justice reform. Are they smart enough to have figured that out and be doing it deliberately? Maybe, maybe not; but it’s still a feature rather than a bug for them.

Alecto, Megaera, and Tisiphone, there is so much food for thought here that I really don’t even know what direction to point you in.  However, you have been doing your jobs for enough milennia that you probably have a pretty good idea yourselves.  Go for it!

The Furies and I will be back.

Cross posted to Care2 HERE.