What do we say to Big Brother? Not today

by Aaron Tucek, University of Chicago Law School Class of 2019

In 2013, the Illinois General Assembly passed landmark legislation protecting residents from government surveillance drones. Now they want to roll back those protections and jeopardize the privacy of any person who exercises their right to peacefully assemble. This legislation is bad for human freedom and wrong for Illinois.

Imagine a world in which the government is always watching. At a Fourth of July parade, police drones pass above the parade route every few minutes, facial recognition cameras scanning the crowd. Officers pull aside and question people who stand out from the crowd because they look different, or have a traffic violation, or a history of public civil disobedience. At a high school homecoming football game, the process repeats itself. The facial recognition drones softly buzz above the stadium, cataloging the crowd, seeking out even the slightest hint of suspicious behavior. At a protest against yet another police shooting of a young black man, the drones are back. Scanning, seeking, ready to call forth the pepper spray and handcuffs and silence the criticism.

A bill working its way through the Illinois legislature would legally authorize this chilling reality. Senate Bill 2562 would allow the police to use surveillance drones at any gathering of more than 100 people for “legitimate public safety purposes.” These purposes include (but are not limited to): “evaluating crowd size, density, or movement; assessing public safety vulnerabilities or weaknesses; determining appropriate staffing levels for law enforcement or other public safety personnel; or identifying possible criminal activity.” Police already have the power to use drones in response to dangerous situations. What this legislation adds — and which current law explicitly rejects — is the active, continuous, and suspicion-less surveillance by drone of anyone and everyone at an event.

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Current law in Illinois is crystal clear: subject to limited exceptions, “a law enforcement agency may not use a drone to gather information.” The circumstances in which police may use drones as a surveillance tool are limited to six situations:

1. There is a high risk of terrorist attack.

2. The police obtain a search warrant based on probable cause.

3. The police have a “reasonable suspicion that, under particular circumstances, swift action is needed to prevent imminent harm to life, or to forestall the imminent escape of a suspect or the destruction of evidence.”

4. Locating a missing person.

5. Photographing crime scenes or traffic crash scenes.

6. Responding to a disaster or public health emergency.

The Illinois General Assembly carefully crafted this legislation to balance the privacy of Illinois residents with the needs of police to respond to emergencies and enforce the law. The overwhelming majorities this bill won in both the Illinois House and Senate suggest that the legislature got the balance right. Importantly, this balance subjects the use of drones for investigative purposes to the same standards of probable cause and reasonable suspicion that is at the core of American criminal law. As a result, a criminal suspect can fear government surveillance by drone, but the law shields a peaceful protester exercising their constitutional rights to speech and assembly from Big Brother’s eye in the sky. At the same time, the law ensures that law enforcement have the flexibility to rapidly deploy drones in response to violence or threats to life.

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This protection from drone surveillance for individuals put Illinois at the forefront of an international debate over how to best protect the privacy rights of protesters. From Zuccotti Park to Tahrir Square to Kiev, protest movements have played an important role in shaping the history of the last decade. And as police violence against protesters in places like Ferguson have grabbed headlines, the international community has sought to give a clearer definition of government obligations when policing assemblies.

To this end, the United Nations Human Rights Council in March 2014 directed the Special Rapporteur on the rights to freedom of peaceful assembly and of association and the Special Rapporteur on extrajudicial, summary or arbitrary executions to produce a joint report laying out practical recommendations for protest policing. This report strongly reaffirmed “the inalienable right to take part in peaceful assemblies” and found that states have obligations to affirmatively protect and facilitate this right.

The Special Rapporteurs laid out two international standards to which such surveillance must adhere. First, “[t]he collection and processing of personal information . . . must comply with protections against arbitrary or unlawful interference with privacy.” Second, “[l]egislation and policies regulating the collection and processing of information relating to assemblies or their organizers and participants must incorporate legality, necessity and proportionality tests.” The report then explains:

Given the intrusiveness of such methods, the threshold for these tests is especially high. Where they interfere with the exercise of rights, data collection and processing may represent a violation of the rights to freedom of peaceful assembly and expression.

Current Illinois law regarding drone use likely meets these standards. The clear statutory language outlawing drone surveillance generally while identifying particular exceptions satisfies the legality principle and greatly reduces the chances of arbitrary use. The legal restriction of drone use to emergency situations in which life is threatened or in which law enforcement must act quickly satisfies the proportionality principle. Finally, the probable cause and reasonable suspicion requirements screen out unnecessary surveillance, thereby satisfying the necessity principle. Under its current legal regime, Illinois thus serves as an international role model for regulating surveillance drones in the context of protest.

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Passage of SB 2562 would not only abdicate this position of leadership, but it would actively threaten the human rights of protesters. The wide discretion, the near certainty that the power will be used along with increasingly sophisticated facial recognition technology, and the danger that it will be used discriminatorily, poses a profound threat to basic human rights. As long as police can articulate some vague public safety reason for the surveillance, they may legally do so. There need be no pressing danger or exigency under this proposal. The simple act of gathering together for an event is enough to justify the privacy intrusion. The abandonment of the probable cause and reasonable suspicion standards in the events context mean judgements of necessity need not guide the deployment of drones. This legislation opens the door to police using drone surveillance simply because they want to, not because they need to in order to effectively respond to the situation. In short, SB 2562 categorically defines most public gatherings as legally suspicious on their face.

The stakes here are high. There can be no more fundamental rights in a democratic society than to speech or to assembly. If freedom means anything, it surely must mean the ability to speak your mind or gather with the people of your choosing without fear of government reprisal. This principle is enshrined in the Illinois Constitution, the United States Constitution, and the Universal Declaration of Human Rights. It is in our social, cultural, and legal DNA.

The active, continuous, and suspicion-less surveillance made possible by drones interferes with these rights. As both the American Civil Liberties Union and the Chicago Sun-Times Editorial Board point out, such surveillance will deter and prevent people from exercising their rights. And thanks to the City of Chicago’s long history of abusive policing practices, we cannot be naïve about where the most of the burden of this surveillance will fall: on activists seeking economic, social, or racial justice; and upon black and brown residents. Illinois should lead the way on the issue of drone surveillance by rejecting SB 2562.

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As Benjamin Franklin famously said, “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.” A democratic society, of course, constantly must balance liberty with safety, but the false promise of some slight increase in safety can never justify violating fundamental freedoms. Yet this is precisely the tradeoff SB 2562 asks Illinois residents to make. It is not worth it. The rights to freedom of speech and assembly are bedrock principles upon which our democracy is built, and they must be defended. Now is the time for Illinois to choose leadership in human rights, and to vote Big Brother right out of the sky.

Written by

The Global Human Rights Clinic (GHRC) at the University of Chicago Law School works for the promotion of global justice https://www.law.uchicago.edu/ghrc

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