The FBI wants to be exempt from privacy protections. We need to safeguard civil rights.
The FBI recently announced its plan to request that their massive biometrics database, called the Next Generation Identification (NGI) system, be exempted from basic requirements under the Privacy Act. These exemptions would prevent individuals from finding out if they are included within the database, whether their profile is being shared with other government entities, and whether their profile is accurate or contains false information. Forty-four organizations, including Data & Society, sent a letter to the Department of Justice asking for a 30-day extension to review the proposal.
The NGI system contains biometric data for over 100 million individuals, including fingerprints and palm prints, iris scans, tattoos, and face-recognition-ready photos. The database contains biometric data for those who have been merely arrested, as well as those who have never been accused of a crime. Actions like applying for a job, a visa application, or even a driver’s license can lead to your biometric data being made accessible to the FBI. Face-recognition photos are becoming particularly valuable due to their ubiquity. Though the NGI system contains only around 30 million photos (and face-recognition searches for law enforcement are currently restricted to the criminal identities portion of the database), the FBI has access to around 400 million such photos through agreements with individual states.
The NGI system has come under scrutiny for its potentially negative social impacts. Widespread and systemic discrimination has been found to impact whose data is included within the system. Minority groups are far more likely to get arrested than whites for the same crimes and tend to be over-represented within criminal biometric databases, increasing the likelihood that they or their family (through a process known as “familial matching”) can be targeted and unduly affected by biometric tests and software known to have high rates of false positives.
But the exemptions that the FBI is proposing highlight another set of concerns stemming from this rapidly expanding database:
What are the effects on the First Amendment rights of those participating in public activities where law enforcement are using surveillance practices for purposes like public safety and crowd control?
The Privacy Act currently contains a provision (5USC 552A(e)(7)) that prohibits the government from tracking people’s political activities. To be clear, the FBI is not asking for an exemption to this provision. However, the exemptions they are requesting — that individuals not be able to check whether they are in a database, with what agencies this information has been shared, and whether the information they hold is correct — would effectively prevent individuals from knowing when the 522A(e)(7) provision has been violated. The right to anonymous speech in both print and public spaces, is protected within the US by the First Amendment. These exemptions, in addition to vast improvements in facial recognition technologies, increase the likelihood that individuals could be identified at political events, eliminating the anonymity which can be fundamental to taking part in political protest and dissent without fear of retribution.
Advances in facial recognition technology heighten these concerns. Technology use by law enforcement within the US has actually lagged behind; governments internationally have become much more sophisticated about their use, particularly to increase security at major public events. Before the World Cup in Brazil in 2014, there were reports police would be using facial recognition goggles that could identify individuals at 400 feet and drones and helicopters outfitted with HD surveillance and infrared cameras. For the Olympic Games in Rio, Brazil is using much of the same technology and has also purchased four “monitoring balloons” with thirteen cameras that will send images to a centralized control center for analysis.
In the US, police departments are increasingly working to advance or adopt better facial recognition technologies, and states have been working with the NGI to enable access to face-recognition photos held by other agencies, such as Departments of Motor Vehicles. In 2013, the ACLU reported that at least twenty-six states have made driver’s license photos available to police officers in what was referred to as a “face recognition fishing pond” to be used to identify crime suspects from images taken by security cameras. In California, the attorney general has publicly expressed interest in investing in and expanding use of new facial recognition software to identify individuals against mugshots.
With potential security threats posed in the wake of media coverage on attacks on civilians around the world, interest in facial recognition technology has only grown, tipping the balance between privacy concerns and security more towards the latter. There is another balance that must be struck though — between security and the right to anonymity to protect speech rights.
The exemptions currently being proposed by the FBI remove a critical set of checks and balances to ensure those rights are not being violated.
This balance between the need to protect anonymity in political discourse, and the desire to increase security particularly at public events, can be quite difficult to strike. The FBI does not clearly recognize this need. In their public presentations on their NGI technology, their experts used photos of 2008 Clinton and Obama campaign rallies to demonstrate how facial recognition technology could be used to identify individuals in crowds. Law enforcement is also having trouble walking this line. In 2014, there were reports that the Boston PD had taken part in a pilot program with IBM which used digital video surveillance and “situational awareness software” for two public events, Boston Calling in May 2013 and Boston Calling in September 2013.
The notion that the FBI and other law enforcement agencies would potentially use this technology against protestors and activists is not far-fetched. The FBI has flown surveillance flights over communities like Ferguson and Baltimore during recent periods of civil unrest — a practice FBI Director James Comey defended, saying it did not require a search warrant because the cameras are not focused on individuals. The FBI also has a long history of surveilling and policing social movements, particular civil rights activists, including Martin Luther King, Jr., and more recently, organizers of the Black Lives Matter movement. New technologies have increased these surveillance capabilities. An investigation by The Intercept found the Department of Homeland Security has been monitoring Black Lives Matter protestors since Ferguson, using location and social media data to produce minute-by-minute reports on protestors’ movements during demonstrations.
It should also be noted that, depending on the state, biometric data will be kept within the system for many years. Los Angeles County, whose biometric system will be fully interoperable with the Next Generation Identification system maintains biometric information for arrestees within the system until they are 99 years old, if they have a criminal record, and until age 75, if they do not.
Since facial recognition technologies are rapidly advancing, the exemptions being proposed by the FBI could have wider effects in the future than they do now. Individuals would be unable to check whether they were in a database, or be given an opportunity to correct that information, even as technologies advance and become more powerful. At the moment, the FBI is only allowing public comment until July 6th. This is a very short amount of time to understand the very long-term consequences of these exemptions.
A special thank you to Ifeoma Ajunwa and Alvaro Bedoya who contributed ideas and edits to this post.
Points: In this Points original, Robyn Caplan highlights the First Amendment implications of the FBI’s request for exemptions from the Privacy Act for its Next Generation Identification system. Public comment on the FBI’s proposal is being accepted until July 6, 2016.— Ed.
Robyn Caplan is a Research Analyst at Data & Society and a PhD Candidate at Rutgers University’s School of Communication and Information.
