Facial Recognition, Privacy, and the First Amendment

This blog is the forth in a series about facial recognition software in various forms of public and private means of transportation, as well as the greater public policy concerns of facial recognition tools. More posts about the relationship between transportation technology, FRS, and fundamental rights will follow.

As we wrote on October 27th, one of the primary dangers of facial recognition software (FRS) is its impact on the freedom of assembly guaranteed by the First Amendment. FRS is another example of the importance of mobility and surveillance to democratic freedom. Scholars have long emphasized that increased mobility via greater transport options provides an ex ante boost to personal freedom, whereas the electronic or physical marks left by transport can give rise to surveillance and control, which provides an ex post decline in freedom. Thus, while greater mobility can be a boon to democratic liberty, the consequent greater potential surveillance of movement using that transport can counteract that by suppressing the freedom of assembly and association. Therefore, it is crucial to the future of democracy and our constitutional rights that leaders in the mobility space remain aware of potential chilling effects on protected First Amendment activity.

At its zenith, FRS can fuel a surveillance state where the government can locate and identify its citizens, and use those tools to shape every aspect of public life. For years, the Chinese government has used this technology to track and surveille nearly all of its 1.4 billion citizens. If that is not scary enough, the regime has utilized the technology in its genocidal campaign to control, incarcerate, and destroy the Uighurs.

Of course, it’s difficult to imagine this type of situation in the US. However, surveillance  during transportation and in public places is already a fact of life for many Americans; FRS is already a tool used by the Detroit, Chicago, and Pittsburgh police departments. 

A stone’s throw from us at the Law & Mobility Program, Project Green Light Detroit (PGL) is a public-private program by which local businesses set up cameras with video-feeds viewable in real-time by the DPD. The goal is to improve neighborhood safety by speeding up police response times to at-risk locations (inside and outside liquor stores, gas stations, restaurants, medical clinics, and houses of worship). Some of these video cameras may also be connected to a face surveillance system, enabling them to record not only what is happening at a given location, but who is at that location at any given moment. Touting the program’s effectiveness, DPD reports that violent crime has been reduced 23% year-to-date at all sites and 48% at the original 8 sites compared to 2015. However, some commentators cast doubt on the program’s promise, citing research that mass surveillance programs like this generally have only mixed impact if increased in scale.

Moreover, the existence of this capacity to monitor people while they travel through their days may also chill legitimate and valuable speech, running afoul of the First Amendment. Surveillance enables the state to see who citizens associate with and the speech they make or even plan to make. The Supreme Court has found that such requirements to disclose speech and assembly may create an unnecessary risk of discouraging speech, and thus are often unconstitutionally vague and overbroad. Ams. for Prosperity Found. v. Bonta, 141 S. Ct. 2373, 2388 (2021). Such state actions that can indirectly chill speech trigger exacting scrutiny, which requires the policy be narrowly tailored to a sufficiently important governmental interest, although the policy need not necessarily be the least restrictive means of promoting that interest. Id. at 2383-84. In Bonta, the Supreme Court found that California compelling charitable organizations’ disclosure of their Schedule Bs in order to investigate charitable misconduct was facially unconstitutional. Id. at 2378. The court found that the law was essentially “a dragnet for sensitive donor information from tens of thousands of charities each year, even though that information will become relevant in only a small number of cases,” there were alternative ways to investigate fraud, and thus the program mostly just made fraud investigations easier and more convenient by keeping the Schedule B information close at hand. Id. at 2387.

In a constitutional challenge, PGL may run into similar problems to California’s disclosure requirements. The program can be characterized as indiscriminate surveillance not narrowly tailored to the interest of crime prevention, since there are many alternative ways to report or show incidents of crime without real-time video-feeds. The interest in faster police response times may even be characterized as administrative in nature, and that argument may become stronger if the aforementioned concerns about effectiveness of the program as it scales up come true. Such a constitutional challenge is becoming more likely, as FRS receives more scrutiny for its impact on civil rights from commentators and activists. For instance, a Michigan man recently filed a federal lawsuit against the DPD for wrongfully arresting and jailing him based on flawed and racially biased FRS, and civil rights organizations have petitioned the government to prevent using FRS. PGL has already been put to use on disfavored speech; in summer 2020, the media reported allegations that PGL was used on crowds of Black Lives Matter protestors to identify people not social distancing and fine them for violating the governor’s health order, and to identify those with questionable immigration status.

Besides the legal issues, FRS programs like PGL may face resistance from the communities they are supposed to serve. FRS does not just identify criminals; it identifies all people. Thus, PGL not only allows the DPD to identify a mugger outside a liquor store, it also allows the government to watch people in deeply personal moments where they expect privacy, such as going to pray at a house of worship, obtain an abortion at a medical clinic, or receive counseling at a drug rehabilitation center. Protests have been mounted against PGL, and surveys of 130 residents of three cities(Detroit, Los Angeles, and Charlotte) indicated that these people want to be seen but not watched, and expressed discomfort with FRS due to intrusion on their privacy. Therefore, installing FRS in our transportation networks may contribute to making our daily lives safer, but also provides great power that may not only run afoul of constitutional freedoms but also disquiet people’s notions of privacy.