As Black Lives Matter protesters from Arctic Alaska to Washington, D.C., took to the streets in a historic movement against police brutality, disturbing reports surfaced of law enforcement using a wide array of surveillance technologies to track them. The Minneapolis Police Department can draw on a range of such technologies, including, as BuzzFeed news reported, the contentious facial recognition software Clearview AI, as well as license plate readers and social media monitoring tools, though it’s unclear how that tech has been employed. In cities including Las Vegas, Washington D.C., and Portland, Oregon, the National Guard and the FBI flew surveillance planes over protests. In Minneapolis, an unarmed Predator drone from U.S. Customs and Border Protection glided overhead. The Drug Enforcement Administration was repurposed for what it called in a memo “covert surveillance” of the protests. Police in Dallas and Tampa even crowd-sourced their surveillance on social media.
In so many cities, residents know very little about what surveillance technologies police are using, how, and when. Due to a lack of current laws related to most of these technologies, we may never know the true extent of what tech has been used during these protests. The time is ripe to bring oversight and accountability to police use of surveillance technologies at all levels, and advocates across the country are pushing for local laws to this end.
Sadly, our law enforcement entities have a long history of monitoring demonstrations –especially those by and for the rights of people of color – using “national security” as justification. It is no secret that the FBI used its Cointel program to surveil Martin Luther King, Jr. and other Black civil rights activists in the 1960s. The FBI’s recent creation of the “Black Identity Extremist” term also lays bare that the racist nature of domestic surveillance from the 1960s with the deceptive justification of “national security” is just as much, if not more, of a problem today.
Meanwhile, technology has reshaped how demonstrators and other ordinary citizens are monitored. New, invasive forms of biometric surveillance that purport to identify individuals based on faces (facial recognition) or even their walk (gait detection) can track thousands of protesters from each surveillance camera. And big data companies like Palantir and ClearviewAI help their government clients by compiling massive datasets from these sources and from social media accounts.
Beyond First Amendment Issues
In addition to the First Amendment implications for the rights to peaceful assembly and free speech, it is important to recognize that these same technologies also fuel the brutal policing that led us to this moment of reckoning. While the most urgent reform efforts since George Floyd’s killing have aimed to directly address police conduct and accountability, technical tools enable police to monitor and potentially stifle dissent, and contribute to much of the disproportionate policing in the United States.
But there are ways to rein in police surveillance technologies. At the very least, democratic processes must be put in place surrounding the acquisition and use of surveillance tech. Local campaigns support legislation that would do just that — require transparency into what police technologies are in use, and allow opportunities for community input before they are deployed. These efforts often are undertaken through the Community Control Over Police Surveillance (CCOPS) initiative, organized in September 2016 by 18 organizations (including my own, the Open Technology Institute) and led by the American Civil Liberties Union. In a crucial win for advocates, New York City in June became the 14th city to enact one of these transparency laws, when the City Council approved the Public Oversight of Surveillance Technology Act.
Now, it’s time for the District of Columbia to follow suit. As our nation’s capital, Washington, D.C., has long been one of the central places for protest in the United States, including after the police killing of George Floyd in Minneapolis. In addition, a jigsaw puzzle of federal and local police agencies and jurisdictions make D.C’s surveillance landscape especially complex.
At the local level, citizens have little transparency into what technologies are used by D.C.’s Metropolitan Police Department (MPD), as most technologies go unchecked in the absence of laws governing their use. (Notably, no laws have authorized most of these police surveillance technologies either.) At the federal level, 32 law enforcement agencies also operate in the District, and much of their policing and surveillance capacity has been deployed to the maximum extent over the past two months. While federally-focused reforms would require congressional action, the D.C. City Council should act now to rein in the District government’s use of these dangerous technologies.
D.C. Advocates Push for Transparency
A coalition of local advocates in the CCOPS initiative known as “Community Oversight of Surveillance – D.C.” (COS-DC), which also includes my organization, has been pushing the D.C. City Council to enact a surveillance transparency and oversight law. The legislation we have urged the council to take up would require the D.C. government to:
- use a transparent public process when any D.C. government agency seeks to acquire and use any surveillance technology.
- weigh costs and benefits to the District of technology the council is considering, including individual civil rights and civil liberties.
- establish written rules for use of surveillance technologies that would need to be approved by the council alongside impact reports.
- create a privacy advisory group, which would include members with expertise in privacy and technology, that would advise D.C. government agencies and the city council on the civil rights and civil liberties risks related to specific surveillance technologies.
- conduct regular audits of how surveillance technologies are used and their impact, including on rights and liberties.
To be clear, these oversight laws are an important step toward accountability, but are not the end of the battle to rein in police tech. Such laws allow the public to know what surveillance tools are in use in their communities as a first step toward fighting any unjust technologies or unjust uses of them. Without this type of transparency, it can be challenging to even start an informed dialogue with local leaders and police departments and push back on any particular technology or seek limits on how it is used. That was demonstrated by a recent debate in the City Council over facial-recognition tech and cell site simulators (which mimic cell towers to obtain individuals’ locations).
Outright bans also might be necessary, as in the case of certain technologies that we already know are highly invasive, racially-biased, and antithetical to the First and Fourth amendments, such as facial recognition. In Washington, D.C., the police department is known to use that, as well as cell site simulators and even smart street lighting, which contains surveillance capabilities and could add to the plethora of government cameras around the District. Yet there is very little public record of these technologies, let alone oversight.
Mayor Muriel Bowser has made a show of standing with protesters lately — painting an enormous yellow Black Lives Matter mural in front of the White House, naming the area “Black Lives Matter Plaza,” and publicly calling on Trump to pull back federal law enforcement officers from the District. But if the mayor truly wants to stand in solidarity with protesters, she could support this oversight legislation to outlaw unchecked spying on them. As a focal point of protest in the United States, Washington D.C. is a prime example of a locality in dire need of this type of law, so enactment could have impact on oversight of surveillance nationwide.
(Editor’s note: Readers may also be interested in this related article: “New Technologies, New Problems – Troubling Surveillance Trends in America,” by Steven Feldstein and David Wong.)
IMAGE: Police and private security personnel monitor security cameras at the Lower Manhattan Security Initiative on April 23, 2013 in New York City. At the counter-terrorism center, police and private security personel monitor more than 4,000 surveillance cameras and license plate readers mounted around the Financial District and surrounding parts of Lower Manhattan. Designed to identify potential threats it is modeled after London’s “Ring of Steel” system. (Photo by John Moore/Getty Images)