On Thursday, the U.S. Court of Appeals for the Ninth Circuit became the first appellate court in the nation to directly address the privacy harms posed by face recognition technology. The decision is a significant advance in the fight against the threats of face surveillance, sounding the alarm on the potential for this technology to seriously violate people’s privacy.

In Patel v. Facebook, a group of Facebook users from Illinois allege that Facebook violated the Illinois Biometric Information Privacy Act (BIPA) by using face recognition technology on the users’ photographs without their knowledge and consent. BIPA is the oldest and strongest biometric privacy law in the country, requiring companies to obtain informed consent before collecting a person’s biometric identifiers, including face recognition scans. Importantly, the law provides individuals in Illinois with a right to sue for damages if a company has violated their rights.

Facebook’s primary argument in the case was that in order to establish “standing” to sue, the plaintiffs should have to demonstrate some concrete injury beyond a violation of BIPA's requirement of notice and consent. As we argued in an amicus brief last year, surreptitious use of face recognition technology does cause harm, by subjecting people to unwanted tracking and by leaving them vulnerable to data breaches and invasive surveillance. Given the rapid proliferation of face surveillance technology in recent years, it is critical that Illinoisans are able to enforce BIPA’s protections against unwanted collection of their biometric information. A requirement that a person must demonstrate monetary loss or similar injury in order to sue would seriously undermine BIPA’s intent to safeguard against abusive collection of biometric data in the first place.

In Thursday’s ruling the Ninth Circuit agreed, holding that “the development of a face template using facial-recognition technology without consent (as alleged here) invades an individual’s private affairs and concrete interests.” 

To reach that conclusion, the court looked not only to the long-recognized entitlement of people to sue private parties over violations of common-law privacy rights, but also to evolving Fourth Amendment protections against law enforcement surveillance. This includes the landmark decision in Carpenter v. United States, an ACLU case about police access to cell phone location data decided last year. As the Ninth Circuit explained, drawing from language in Carpenter, “[i]n its recent Fourth Amendment jurisprudence, the Supreme Court has recognized that advances in technology can increase the potential for unreasonable intrusions into personal privacy… As in the Fourth Amendment context, the facial-recognition technology at issue here can obtain information that is ‘detailed, encyclopedic, and effortlessly compiled,’ which would be almost impossible without such technology.”

The Ninth Circuit’s ruling is important not only because it explains why surreptitious use of face recognition by corporations harms people’s privacy interests, but also because it puts law enforcement on notice that recent Supreme Court cases regulating other forms of electronic surveillance have something to say about face surveillance technology.

Indeed, the potential for this technology to enable the government to pervasively identify and track anyone (and everyone) as they go about their daily lives is one of the reasons the ACLU is urging lawmakers across the country to halt law enforcement use of face surveillance systems. This decision puts both corporations and law enforcement agencies on notice that face surveillance technology poses unique risks to people’s privacy and safety.

The Ninth Circuit’s ruling also demonstrates the importance of privacy laws including strong private rights of action, affirming people’s right to turn to the federal courts for redress when their rights have been violated. Without a right to sue, privacy guarantees will often prove ephemeral. As state legislatures and Congress move forward on consumer privacy legislation, they should follow Illinois’ lead by including private rights of action in these statutes.

Nathan Freed Wessler, Staff Attorney, ACLU Speech, Privacy, and Technology Project

Public outcry and protests in Puerto Rico brought on the resignation of Governor Ricardo Rosselló, the successor he appointed — former politician and lawyer Pedro Pierluisi — had to step down yesterday. The Puerto Rico Supreme Court unanimously decided that appointing Pierluisi as governor without Senate confirmation is unconstitutional. Wanda Vázquez, the former secretary of justice, took the oath as governor before the end of day yesterday. Puerto Ricans are now in a new period of doubt in its leadership, with many wondering how long the seemingly unpopular Vázquez might be governor.

After a month of nonstop developments, protests have continued in the island. It all began when hundreds of thousands of protesters were unleashed onto the streets of Puerto Rico, cities across the U.S., and many other countries populated by the island’s ever-growing diaspora decrying former Gov. Rosselló. Why? Because on July 13, the contents of a Telegram group chat managed by Rosselló were leaked to the public, and immediately led to mass protests calling for his resignation. Days before, federal agents began a series of arrests after a grand jury handed down corruption indictments against a government official and contractors. Arrests are likely slated to continue.

A general strike was declared on July 24, resulting in an estimated 1.1 million people peacefully protesting across the island. People affiliated with all local political parties, Democrats and Republicans, single mothers, the elderly, people with disabilities, all stood shoulder to shoulder with thousands of young people, the LGBTQ community, and women protesting in the streets. The crowd of protestors was enormous, over 500,000 occupying 12 lanes of the Luis Ferré Highway just in San Juan, the capital, and saturating other major towns and cities with people. To put the magnitude of the protest into perspective, close to one-third of Puerto Rico’s population was estimated to be present for the general strike.

The protests went on for days and were sustained by the perseverance and creativity of our people. People danced, sang, and even went scuba diving in protest. People prayed, practiced yoga, and banged pots and pans all night in protest.

For over a week, ACLU of Puerto Rico legal observers worked around the clock to ensure that the people’s right to protest was protected. Our volunteers and staff were caught in the middle of violence initiated by the Puerto Rico police acting as political agents of the governor. Unfortunately, blood was shed almost nightly for days. ACLU observers documented the excessive use of force against protesters and immediately and publicly called out the government for failing its promises to reform the police.

Protesters were expressing their indignation with the ongoing corruption scandals and the offensive, misogynistic, homophobic, and grossly insensitive rants in the chat messages by the governor’s male associates — and Rosselló himself. The governor and cabinet members joked about shooting political enemies. They did not even spare the victims of Hurricane Maria from their mockery, while many families are still trying to claim the bodies of their loved ones.

When the chats leaked, we the people of Puerto Rico got a close and personal look at our government officials. What we saw was the inner workings of a government that disrespected its own people. The Telegram “Chat-gate” added insult to injury and became the spark that jumpstarted a peaceful revolution. It was the first time in Puerto Rico’s history that a governor resigned.

But it was not just about the leaked chats. Frustration with historic colonial repression, the fiscal oversight board appointed by Washington, and the incompetence and corruption of its government was the last straw for many Puerto Ricans. The Rosselló administration did little to stop the pilfering and years of corruption that eventually left U.S. citizens in Puerto Rico with no essential services for months, even years, after Hurricane Maria. Institutions were left to collapse, and the money needed for post-Maria recuperation and rebuilding was simply not there. The Rosselló administration exacerbated the suffering of the poor, the elderly and the disabled.

Even while working to recuperate from the devastation of the hurricane, politicians and the members of the board continued to hand out lucrative, multimillion-dollar contracts to their friends and cronies. All while schools and medical services were shutting down. Puerto Rico’s Department of Education handed out millions of dollars in contracts, while it shut down hundreds of schools and privatized others. Children with disabilities and their families had to leave the island to get much-needed care. This is just one example of many. In return, families saw themselves separated and dispersed across the United States and several countries. It has been Puerto Rico’s largest exodus since the 1950s.

We are still watching history unfold, and it is likely that the revolution and protests have not ended. Puerto Ricans have awakened from over 500-years of colonial oppression to the realization that power truly lays within us, its people. We are no longer willing to remain silent when our leaders spew hate and corruption.

William Ramirez, ACLU of Puerto Rico

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Late Friday evening, the Supreme Court gave the Trump administration a temporary green light to begin construction of the border wall using military funds Congress denied. The order, while temporary and limited to specific wall projects where fencing already exists, threatens to permanently damage border communities, the environment, and our Constitution’s separation of powers.

But it’s not the “big victory” President Trump quickly declared. The fight continues.

Most importantly, the Supreme Court has not yet decided the case. The case — which we filed on behalf of the Sierra Club and Southern Border Communities Coalition (SBCC) — now goes back to the Ninth Circuit Court of Appeals. There, we’ll be asking the court to further expedite ongoing appeal proceedings.

It’s important to be clear on what the 5-4 majority of the Supreme Court actually said on Friday. The Supreme Court didn’t give Trump’s abuse of emergency powers the stamp of approval, or say anything about whether the wall construction was lawful. Nor did the Supreme Court say that our clients lack standing — even the government concedes that Sierra Club and SBCC members face harm from the construction of a 30-foot wall on the lands they use and treasure.

Instead, in temporarily granting the administration’s request to begin wall construction, the majority’s brief, one-paragraph order stated that “the Government has made sufficient showing at this stage that the plaintiffs have no cause of action to obtain review.” The words “at this stage” are key. To receive a temporary stay, which the government was asking for here, the bar is lower than for normal review. The government has to show only a “fair possibility” in prevailing on the cause of action issue.

At the next stage, when our case is given full consideration, the government would have to actually establish that our clients, who are indisputably harmed by Trump’s abuse of powers, still can’t call on the courts to stop the president’s illegal power grab. That’s a much higher bar, and one the government has failed to meet in lower courts. Moreover, there are centuries-old precedents empowering courts to halt lawless executive action, and the Supreme Court has long recognized those precedents. There is a strong reason to believe it will do so again in a case where the illegality is as blatant as the president taking funds Congress deliberately and expressly denied.

That said, the government has been pushing the courts to adopt the extreme view that no injured party — not our clients, or impacted states, or even the House of Representatives — can go to court to block the president’s blatant abuse of power. It’s arguing the president’s actions are unreviewable by the courts.

That is a dangerous proposition, and it would be a huge setback for our democratic system if the Supreme Court adopts it. But Trump hasn’t succeeded in convincing five justices to give him that power yet — and for good reason.

A basic rule of our democracy is that when the government acts without legal authority, the courts are open to injured parties who seek to block that unlawful action. If the courts start washing their hands of that responsibility by not allowing people in court — as the government is encouraging they do — blatant abuses of power will go unchecked, and the rule of law will be forever damaged.

This should concern everyone, regardless of one’s political affiliation. No matter which party is in power, the courts have a critical role to play in making sure that the executive branch doesn’t have unreviewable authority to ignore the law. Otherwise, everyone from bureaucrats to FBI agents to cabinet secretaries to the president would be empowered to disregard the basic principles of our democracy.

We can’t let that happen.

As our lawsuit proceeds, we will continue to make the case that our clients, who will be harmed because of Trump’s xenophobic wall, deserve their day in court to prevent and undo that harm. The government told the Supreme Court that if our clients ultimately win, courts can order that the unlawful wall be taken down. We plan to hold the government to its word, and will seek the removal of every mile of unlawful wall built while this temporary stay is in place.

Dror Ladin, Staff Attorney, ACLU National Security Project