Public Protest, Face Recognition, and the Shield of Anonymity
“Anonymity is a shield from the tyranny of the majority…. It thus exemplifies the purpose behind the Bill of Rights and of the First Amendment in particular: to protect unpopular individuals from retaliation — and their ideas from suppression — at the hand of an intolerant society.”
These words are from the Supreme Court decision in McIntyre v. Ohio Elections Commission in 1995, holding that the right to anonymity is intrinsic to the exercise of free speech. They carry particular relevance today, in the age of both widespread public protest and police face recognition technology.
Face recognition is a tool of identification. It enables anyone whose face shows up in a photo or video to be identified — or misidentified — by the police. Put another way, face recognition is a tool that can remove the shield of anonymity from the tens of thousands of Americans out in the streets today, protesting the intolerances of systemic racism and anti-blackness.
And we have every reason to believe it will be used. In 2015, police reportedly used face recognition to identify protesters in Baltimore following Freddy Gray’s death in police custody. Over this past week the FBI, as well as police departments in Dallas, Austin, and Seattle have called on the public to send in photos and videos in an effort to identify protestors suspected of breaking the law. These agencies, like so many others, have access to Clearview AI, a face recognition database of three billion faces scraped from various sources across the Internet.
I am not suggesting we should stop photographing, live-streaming, documenting what is happening on the ground. To the contrary, we’ve seen that these photos and videos are an essential ingredient in beginning to establish accountability for the treatment of people of color and of protesters at the hand of police.
Rather, this is a call to help hold up the shield of anonymity when possible. Train cameras on police. When agencies ask for documentation of protests, send K-pop videos. Where possible, use the tools available to help blur the faces of protesters and bystanders in photos and videos.
I wish it didn’t have to be our individual responsibility to protect ourselves, and each other, from the “tyranny of the majority.” But our laws have not kept pace with the development and deployment of police face recognition technology. Moreover, few agencies have policies that prohibit the use of biometric surveillance on public protest. Even those that do nonetheless allow use of the technology in the case of possible crime. And from what we all have witnessed over the past two weeks, the line between what police consider peaceful protest worthy of protection, and what is viewed as “incitement to violence” or merely violating a curfew — met with tear gas, arrests, and orders to disperse — is not at all clear.
In the words of the 1995 Supreme Court, anonymous speech “is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent.” Let us continue to honor that tradition by protecting the anonymity of our fellow advocates and allies.
And as we begin thinking about what true reform looks like, let’s be sure to include face recognition and the right to anonymity in that conversation.
Clare Garvie is a senior associate with the Center. You can find her on Twitter at @clareangelyn.
