Many of us wear masks on Halloween for fun. But what about a world in which we have to wear a mask every single day to protect our privacy from the government’s oppressive eye?

Face recognition surveillance technology has already made that frightening world a reality in Hong Kong, and it’s quickly becoming a scary possibility in the United States.

The FBI is currently collecting data about our faces, irises, walking patterns, and voices, permitting the government to pervasively identify, track, and monitor us. The agency can match or request a match of our faces against at least 640 million images of adults living in the U.S. And it is reportedly piloting Amazon’s flawed face recognition surveillance technology.

Face and other biometric surveillance technologies can enable undetectable, persistent, and suspicionless surveillance on an unprecedented scale. When placed in the hands of the FBI — an unaccountable, deregulated, secretive intelligence agency with an unresolved history of anti-Black racism — there is even more reason for alarm. And when that agency stonewalls our requests for information about how its agents are tracking and monitoring our faces, we should all be concerned.

That’s why today we’re asking a federal court to intervene and order the FBI and related agencies to turn over all records concerning their use of face recognition technology.

The FBI’s troubling political policing practices underscore the urgent need for transparency. Under the leadership of the agency’s patriarch — the disgraced J. Edgar Hoover — the FBI obsessively spied on left-wing, Indigenous rights, anti-war, and Black power activists across the country. Hoover infamously tried to blackmail Martin Luther King, Jr., encouraging the civil rights leader to kill himself to avoid the shame Hoover’s leaks to journalists would bring to him and his family. The FBI was also involved in the 1969 killing of Fred Hampton, a brilliant Chicago leader in the Black Panther Party who was assassinated by Chicago Police while he lay asleep in his bed next to his pregnant girlfriend.

While Hoover’s reign may be history, the FBI’s campaign against domestic dissent is not.

Since at least 2010, the FBI has monitored civil society groups, including racial justice movements, Occupy Wall Street, environmentalists, Palestinian solidarity activists, Abolish ICE protesters, and Cuba and Iran normalization proponents. In recent years, the FBI has wasted considerable resources to spy on Black activists, who the agency labeled “Black Identity Extremists” to justify even more surveillance of the Black Lives Matter movement and other fights for racial justice. The agency has also investigated climate justice activists including 350.org and the Standing Rock water protectors under the banner of protecting national security.

Because of the FBI’s secrecy, little is known about how the agency is supercharging its surveillance activities with face recognition technology. But what little is known from public reporting, the FBI’s own admissions to Congress, and independent tests of the technology gives ample reason to be concerned.

For instance, the FBI recently claimed to Congress that the agency does not need to demonstrate probable cause of criminal activity before using its face surveillance technology on us. FBI witnesses at a recent hearing also could not confirm whether the agency is meeting its constitutional obligations to inform criminal defendants when the agency has used the tech to identify them. The failure to inform people when face recognition technology is used against them in a criminal case, or the failure to turn over robust information about the technology’s error rates, source code, and algorithmic training data, robs defendants of their due process rights to a fair trial.

This lack of transparency would be frightening enough if the technology worked. But it doesn’t: Numerous studies have shown face surveillance technology is prone to significant racial and gender bias. One peer-reviewed study from MIT found that face recognition technology can misclassify the faces of dark skinned women up to 35 percent of the time. Another study found that so-called “emotion recognition” software identified Black men as more angry and contemptuous than their white peers. Other researchers have found that face surveillance algorithms discriminate against transgender and gender nonconforming people. When our freedoms and rights are on the line, one false match is too many.

Of course, even in the highly unlikely event that face recognition technology were to become 100 percent accurate, the technology’s threat to our privacy rights and civil liberties remains extraordinary. This dystopian surveillance technology threatens to fundamentally alter our free society into one where we’re treated as suspects to be tracked and monitored by the government 24/7.

That’s why a number of cities and states are taking action to prevent the spread of ubiquitous face surveillance, and why law enforcement agencies, at minimum, must come clean about when, where, and how they are using face recognition technology. There can be no accountability if there is no transparency.

Kade Crockford, Director, ACLU of Massachusetts Technology for Liberty Project

In 1994, the St. Louis Circuit Attorney’s Office committed gross prosecutorial misconduct in order to convict Lamar Johnson of murder. They knowingly presented perjured testimony, fabricated facts to negate Johnson’s strongly corroborated alibi, and buried the fact that a prime witness against him was a paid jailhouse informant. Twenty-five years later, that same Circuit Attorney’s Office, now led by Kim Gardner, is doing everything it can to get Johnson a new trial so the truth can vindicate him. But the Missouri establishment is fighting her tooth and nail, all while Johnson languishes in prison for a crime he almost certainly didn’t commit.
 
The only reason Johnson has a fighting shot at liberty today is that Gardner, like a handful of recently elected, reform-minded prosecutors, created a Conviction Integrity Unit to review questionable cases like his. Gardner’s CIU produced a 70-page report cataloging the misconduct in Johnson’s case and used it to move for a new trial. It should have been a no-brainer, but a Missouri judge rejected the request — not based on the evidence itself, but because Johnson had technically missed the deadline for filing a new trial motion.
 
The trial court got it wrong, and today the ACLU, ACLU of Missouri, and the Innocence Project filed an amicus brief explaining why. It’s simple — Missouri courts, like all state and federal courts — have the inherent authority to prevent miscarriages of justice like this. Specifically, no potentially innocent man should be held behind bars and refused a retrial because of a technicality, without so much as a hearing to test the evidence and expose the state’s wrongdoing. The trial court could have actively avoided this black letter law in denying the motion.
 
Given the clarity of the legal question here, we have to ask ourselves why the Missouri courts — as well as the state Attorney General, who opposed the new trial motion and would represent the state in further proceedings — are bending over backward to avoid learning the truth. After all, the justice system in Missouri has always supported a prosecutor’s discretion to follow the evidence where it leads, just as Gardner and her CIU have done here. Is the difference that Gardner dared to use that discretion to vindicate a man, rather than keep him locked up? Is it that Johnson is Black? Is it that Gardner is a young, Black, female elected prosecutor who has upset St. Louis’ good old boys club, including investigating the notorious St. Louis police? Or is it that punishment and racism are so deeply ingrained in our criminal justice system that any indication that we get it wrong from time to time — even if getting it wrong means stealing a man’s life — must be fought to the hilt, lest the entire house of cards comes crashing down?
 
These are all fair questions to ask because Lamar Johnson’s story is hardly unique, nor is the institutional pushback against Kim Gardner’s attempts at reform. Nationwide, a new wave of prosecutors who dare to challenge mass incarceration have been met with resistance at every turn, even when deploying the same discretion that previous prosecutors have enjoyed.

In Boston, District Attorney Rachael Rollins dropped criminal charges against protestors exercising their First Amendment rights and was forced to defend that discretionary decision in Massachusetts’ highest court (she won). In Philadelphia, the federal U.S. attorney is waging a public war against local DA Larry Krasner instead of working hand in hand with him to administer justice. In Baltimore, Governor Larry Hogan is attempting to steal cases from State Attorney Marilyn Mosby to show how tough on crime he is. And in Chicago, the local police union has publicly expressed “distrust” in State Attorney Kim Foxx, who was elected in part because she correctly distrusted the police’s own cover-up of the Laquan McDonald murder.
 
Unsurprisingly, these prosecutors also share another thing in common — they’ve all instituted Conviction Integrity Units to help ensure that wrongful convictions become a thing of the past.
 
To be clear, none of these prosecutors is perfect, nor is prosecutorial discretion an unmitigated good. When prosecutors do what is right, they deserve support, just as they deserve critique when they are wrong. Unfettered discretion helped get us into the mass incarceration mess in the first place. Even reform-minded prosecutors can better restrain their discretion across a variety of issues, including not appealing tainted convictions and not coercing plea bargains from vulnerable defendants, even though they can.
 
But when prosecutors recognize the damage their predecessors have done — including the horrific harm of a wrongful conviction — deploying discretion to right that wrong is the height of justice and should be celebrated, not demonized. Accordingly, we hope the Missouri appeals court will deploy its discretion to right the wrongs done by the district court in Lamar Johnson’s case, and give him the new trial he so obviously deserves.

Somil Trivedi, Senior Staff Attorney, ACLU &
Anthony Rothert, Legal Director, ACLU of Missouri

South Dakota’s governor and attorney general today backed down from their unconstitutional attempts to silence pipeline protestors. In response to a lawsuit we filed alongside the ACLU of South Dakota and the Robins Kaplan law firm, the state has agreed to never enforce the unconstitutional provisions of several state laws that threatened activists who encourage or organize protests, particularly protests of the Keystone XL pipeline, with fines and criminal penalties of up to 25 years in prison.

The settlement agreement reached today and now headed to the court for approval is an important victory for the right to protest. It comes soon after a federal court temporarily blocked enforcement of the pieces of the laws that infringed on First Amendment protected speech, and makes the court’s temporary block a permanent one.

The laws include the “Riot Boosting” Act, which gave the state the authority to sue individuals and organizations for “riot boosting,” a novel and confusing term. The court warned against the laws’ broad reach, noting that the laws could have prohibited:

• Sending a supporting email or a letter to the editor in support of a protest
• Giving a cup of coffee or thumbs up or $10 to protesters
• Holding up a sign in protest on a street corner
• Asking someone to protest

Under the First Amendment, that is impermissible.

The court rightly recognized the stakes of this case. And it put these anti-protest efforts in perspective, asking “if these riot boosting statutes were applied to the protests that took place in Birmingham, Alabama, what might be the result?” The answer: “Dr. King and the Southern Christian Leadership Conference could have been liable under an identical riot boosting law[.]”

Indeed, South Dakota’s unconstitutional anti-protest efforts echoed the suppression of past social movements. From the start, South Dakota Governor Kristi Noem called on “shut[ting] down” “out-of-state people” who come into South Dakota to “slow and stop construction” of the pipeline. Her harmful calls were reminiscent of government attempts throughout our history to delegitimize and minimize significant social movements as the work of “outside agitators,” including Reverend Martin Luther King Jr.

South Dakota’s quick and costly retreat (they’ll have to compensate plaintiffs for attorney’s fees under the settlement agreement) should serve as a lesson for other legislatures considering similar efforts to silence dissent.

In the last few years, we have witnessed a legislative trend of states seeking to criminalize protest, deter political participation, and curtail freedom of association. These bills appear to be a direct reaction from politicians and corporations to some of the most effective tactics of those speaking out today, including water protectors challenging pipeline construction, Black Lives Matter, and those calling for boycotts of Israel. These legislative moves are aimed at suppressing dissent and undercutting marginalized and over-policed groups voicing concerns that disrupt current power dynamics.

But the First Amendment guarantees people the right to voice their opposition. This includes our clients — four organizations (the Sierra Club, NDN Collective, Dakota Rural Action, and the Indigenous Environmental Network) and two individuals (Nick Tilsen with NDN Collective and Dallas Goldtooth with Indigenous Environmental Network) — all of whom are protesting construction of the Keystone XL pipeline and encouraging others to do the same.

Construction of the Keystone XL pipeline may be imminent. Pre-construction activities resumed this month, and a hearing on the new Draft Environmental Impact Statement for the pipeline, which will serve as the basis for approval of any future permits, is coming up next Monday.

With the laws we challenged proclaimed unenforceable, protesters and protectors no longer have to worry about incarceration or fines as they protest against the construction. That is, at a minimum, how democracy should work.

Vera Eidelman, Staff Attorney, ACLU