The Perpetual Line-up

J. Edgar Hoover kept track of his opponents. Hoover’s FBI conducted surveillance on Martin Luther King, Jr., Fannie Lou Hamer, Cesar Chavez, Marcus Garvey, and many other civil rights leaders.146 Public protests were seen as a threat. FBI agents, disguised as freelance photographers, were sent to photograph them. According to a candid memoir from an FBI undercover photographer, Richard Coffman:

Following Martin Luther K.’s ‘I Have a Dream Speech’ it was discovered that some of our ‘Most Wanted’ and several subjects of our Domestic Security investigations liked to participate or show up at the various demonstrations. Many of them mostly attracted by the anonymity, opportunity of free drugs and easy available sex. On some of the really large demonstrations I would recruit a dozen or so fellow Agents, instruct them how to not look like FBI Agents and how to mingle among the ‘Hippies’ and other protest types and see and report what was going on.147

Coffman took special interest in surreptitious photographs of interracial couples and nude or partially nude female protesters, which he shared with other law enforcement officials.148

Today’s FBI is a different place. In training, every FBI agent learns about the agency’s surveillance of Dr. King.149 But the specter of political surveillance survives. In a 2012 Senate hearing, Senator Al Franken, then Chairman of the Senate Subcommittee on Privacy, Technology and the Law, confronted the FBI about an agency PowerPoint presentation showing how face recognition could be used to identify people attending the 2008 presidential campaign rallies for then-senators Barack Obama and Hillary Clinton.150 In 2015, the FBI admitted that it conducted surveillance flights over Ferguson and Baltimore during protests of police use of force.151 The Department of Homeland Security has monitored Black Lives Matter protests.152 And footage of Chris Wilson’s protest shows an officer videotaping the event.153

What if every time an FBI special agent pointed his camera at a protester, the FBI could use face recognition to identify her?

• 146. See Alvaro Bedoya, The Color of Surveillance, Slate (Jan. 18, 2016), http://www.slate.com/articles/technology/future_tense/2016/01/what_the_fbi_s_surveillance_of_martin_luther_king_says_about_modern_spying.html.
• 147. Richard C. Coffman, Eyewitness to J. Edgar Hoover’s FBI 423 (2014).
• 148. Coffman held weeklong photography courses for law enforcement officials, multiple times a year, to train them in remote photographic surveillance of demonstrations. At those trainings, “[t]o keep the classes awake,” he would distribute albums of photos he deemed “attention getters” to “pep up” his class. These included photos of “sexually enthusiastic students cavorting nude in the Reflecting Pool;” a “shot of a minor movie starlet smiling[], but panty-less”; a “‘sneak shot’ of an ‘Oreo-cookie couple’s ‘making-out’; and a “surreptitious. . .  ‘close-up’ shot of a top-lessly attired hippie teen-age girl.” Richard C. Coffman, Eyewitness to J. Edgar Hoover’s FBI 425-26 (2014).
• 149. See Federal Bureau of Investigation Director James Comey, Hard Truths: Law Enforcement and Race, Remarks at Georgetown University (Feb. 12, 2015), https://www.fbi.gov/news/speeches/hard-truths-law-enforcement-and-race (“There is a reason that I require all new agents and analysts to study the FBI’s interaction with Dr. Martin Luther King, Jr., and to visit his memorial in Washington as part of their training … to ensure that we remember our mistakes and that we learn from them.”).
• 150. See United States. Cong. Sen. Subcommittee on Privacy, Technology of the Law, Sen. Committee on the Judiciary, What Facial Recognition Technology Means for Privacy and Civil Liberties, July 18, 2012, 112th Cong. 2nd sess..
• 151. See Eric Tucker, Comey: FBI used aerial surveillance above Ferguson, Associated Press (Oct. 22, 2015), http://www.salon.com/2015/10/22/comey_fbi_used_aerial_surveillance_above_ferguson/.
• 152. See George Joseph, Exclusive: Feds Regularly Monitored Black Lives Matter Since Ferguson, The Intercept (June 24, 2015), https://theintercept.com/2015/07/24/documents-show-department-homeland-security-monitoring-black-lives-matter-since-ferguson/.
• 153. See WFTS Webteam, Black Lives Matter protesters arrested at Florida State Fair, WFTS Tampa Bay (Feb. 8, 2016), http://www.abcactionnews.com/news/local-news/black-lives-matter-protesters-arrested-at-state-fair.

The First Amendment protects our freedom of speech and our right to “peaceably assemble" and to "petition the [g]overnment" for a redress of grievances. Unfortunately, the Supreme Court’s interpretation of the First Amendment may provide little protection against the use of face recognition to identify peaceful protesters. Despite the fact that leading law enforcement agencies—including the FBI and the Department of Homeland Security (DHS)—have explicitly recognized the potential chilling effect of face recognition on free speech, we found that almost none of the agencies using face recognition have adopted express prohibitions against using the technology to track political or other First Amendment activity.

First Amendment case law offers mixed guidance on whether face recognition would impermissibly chill free speech and association.154 The Supreme Court has held that the First Amendment protects the right to anonymous speech and association. But the Court has also held that the mere surveillance of speech is insufficient grounds for a First Amendment violation.

a. The right to anonymous speech and association.

Face recognition, at its core, is a means of identification. In 1958, the Supreme Court held in NAACP v. Alabama that the NAACP could not be compelled by state law to disclose the identities—the names and addresses—of its members, on the grounds that disclosure would likely hinder the ability of those members collectively to advocate their beliefs.155 The Court noted that there existed a “vital relationship between freedom to associate and privacy in one’s associations,” particularly in instances where a group advocates minority or unpopular beliefs.156

Talley v. California in 1960, and McIntyre v. Ohio Elections Commission in 1995, reaffirmed the protection of anonymous speech. In Talley, the Court held that a law prohibiting the distribution of anonymous pamphlets violated the First Amendment. The Court reasoned that “[t]here can be no doubt that such an identification requirement would tend to restrict freedom to distribute information and thereby freedom of expression.”157 “Anonymity,” the Court said 35 years later in McIntyre, “is the shield from the tyranny of the majority.”158

b. The right of the police to investigate demonstrations.

The right to free speech and association does not amount to a right to be free from surveillance, however.159 In Laird v. Tatum in 1972, the Supreme Court considered whether military surveillance of public meetings and demonstrations had an “inhibiting effect” on the expression of First Amendment rights. The Court held that without a showing of past or immediate danger of direct injury, it does not. Since then, two lower federal courts have applied Tatum to permit police photography of public demonstrations.160

But there are limits to this doctrine. In Hassan v. City of New York, a 2015 case challenging the NYPD’s pervasive video, photographic, and undercover surveillance of Muslim Americans following 9/11,161 the Third Circuit agreed with the plaintiffs—the victims of surveillance—that the manner by which the program was administered—specifically targeting a group of people for their beliefs and religious affiliations—may have caused them “direct, ongoing, and immediate harm.”162

While photography is a first step in face recognition, face recognition is more than photography; it is identification. As a result, we do not know what courts will say about the integration of face recognition into photographic surveillance of protests.163

• 154. See Laura K. Donohue, Technological Leap, Statutory Gap, and Constitutional Abyss: Remote Biometric Identification Comes of Age, 97 Minn. L. Rev. 407, 543–551 (2012).
• 155. 357 U.S. 449, 1174 (1958).
• 156. 357 U.S. at 462.
• 157. Talley v. California, 362 U.S. 60, 63 (1960).
• 158. McIntyre v. Ohio Elections Com'n, 514 U.S. 334, 357 (1995).
• 159. For a more in-depth analysis of case precedent in the field of Remote Biometric Identification, see Laura K. Donohue, Technological Leap, Statutory Gap, and Constitutional Abyss: Remote Biometric Identification Comes of Age, 97 Minn. L. Rev. 407, 543–551 (2012).
• 160. In 1972, the Fourth Circuit in Donohoe v. Duling considered whether the Richmond Police Department had infringed on people’s freedom of speech and association by photographing public demonstrations, meetings, and vigils. In concluding that Tatum controlled, the court held that the attendees were not “chilled” by the photographic surveillance or deterred from participating in future public gatherings. Donohoe v. Duling, 465 F.2d 196, 202 (4th Cir. 1972). In Philadelphia Yearly Meeting of Religious Society of Friends v. Tate, the Third Circuit in 1975 considered whether the Philadelphia Police Department had violated the First Amendment by attending public meetings, photographing those in attendance, and compiling and sharing those photographs and other information on attendees with other law enforcement agencies and private entities. The court found that “mere police photographing and data gathering at public meetings” is “legally unobjectionable and creates at best a so-called subjective chill” insufficient to form the basis of a First Amendment claim. Phila. Yearly Meeting of Religious Soc’y of Friends v. Tate, 519 F.2d 1335, 1137–38 (3d Cir. 1975).
• 161. Hassan v. City of New York, 804 F.3d 277, 285 (3d Cir. 2015).
• 162. Hassan v. City of New York, 804 F.3d 277, 292 (3d Cir. 2015).
• 163. As Professor Donohue points out, in his dissent in Donohoe Judge Harrison Winter found the idea of the photographs being used to identify unknown meeting-goers to be a different—and distant—proposition. “I cannot suppose that every time a picture is taken of an unknown person it is sent to the FBI in order to determine whether that person is dangerous.” Donohoe v. Duling, 465 F.2d 196, 206 (4th Cir. 1972) (Winter, dissenting). Yet that is precisely what advanced face recognition would allow.

In the absence of clear protections afforded by the courts, it is critically important that legislators and police forces consider the implications of face recognition on free speech.

Legislators have yet to step up to this task. As noted above, not a single state has passed legislation to comprehensively rein in face recognition—and none of the laws that have been passed address the specific risks that face recognition poses to free speech and expression. The federal Privacy Act generally prohibits the government from keeping records “describing how any individual exercises rights guaranteed by the First Amendment.”164 But the FBI is now petitioning for its face recognition system to be exempt from the enforcement of this provision.165

Major federal and state law enforcement agencies have recognized the threat that face recognition presents to free speech. A Privacy Impact Assessment drafted in 2011 by DHS, the FBI, and a number of state police agencies, considered the effects of law enforcement face recognition on the “erosion or compromise of anonymity.”166 The document recognizes that “surveillance has the potential to make people feel extremely uncomfortable, cause people to alter their behavior, and lead to self-censorship and inhibition.”167

To address this concern, the Assessment encourages that law enforcement use policies include express provisions “concerning the appropriate use of a facial recognition field identification tool in areas known to reflect an individual’s political, religious or social views, associations, or activities.”168 In such circumstances, “the collection of long range lens photographs should be limited to instances directly related to criminal conduct or activity.”169

We surveyed many of the state law enforcement agencies that helped write the Assessment.170 But only one agency that provided responsive records expressly addressed the use of face recognition on First Amendment activities in its face recognition use policy.171 Ohio’s newly implemented rule on face recognition states:

Law enforcement may not employ this technology to conduct dragnet screening of individuals, nor should it use it to facilitate mass surveillance of places, groups or activities unless doing so furthers an official law enforcement activity. For example, it would not be appropriate for law enforcement to use facial recognition technology to conduct surveillance of persons or groups based solely on their religious, political or other constitutionally protected activities or affiliations unless doing so furthers an official law enforcement activity.172

The FBI appears to be implementing the PIA’s recommendations by directing users of its face recognition systems to adopt similar rules. The FBI face recognition database Policy and Implementation Guide states: “All appropriate use policies must protect the constitutional rights of all persons and should expressly prohibit collection of photos in violation of an individual’s 1^st and 4^th Amendment rights.”173 However, of the four state law enforcement agencies that provided their face recognition use policy and can submit searches to the FBI face recognition database, not one included this express prohibition.174

• 164. 5 U.S.C. § 552a(e)(7) (2014).
• 165. See Privacy Act of 1974; Implementation, 81 Fed. Reg. 27288, 27289 (proposed May 5, 2016) (to be codified at 28 C.F.R. pt. 16).
• 166. The International Justice and Public Safety Network, Privacy Impact Assessment: Report for the Utilization of Facial Recognition Technologies to Identify Subjects in the Field (June 30, 2011), Document pp. 016625–016693, 016648–016649.
• 167. The International Justice and Public Safety Network, Privacy Impact Assessment: Report for the Utilization of Facial Recognition Technologies to Identify Subjects in the Field (June 30, 2011), Document p. 016632.
• 168. The International Justice and Public Safety Network, Privacy Impact Assessment: Report for the Utilization of Facial Recognition Technologies to Identify Subjects in the Field (June 30, 2011), Document p. 016649.
• 169. The International Justice and Public Safety Network, Privacy Impact Assessment: Report for the Utilization of Facial Recognition Technologies to Identify Subjects in the Field (June 30, 2011), Document p. 016649.
• 170. The Nlets Facial Recognition Workgroup included officials from the FBI, New Jersey State Police, Illinois State Police, Pinellas County Sheriff’s Office, Delaware State Police, SANDAG ARJIS, and the Oregon State Police. The International Justice and Public Safety Network, Privacy Impact Assessment: Report for the Utilization of Facial Recognition Technologies to Identify Subjects in the Field (June 30, 2011), Document p. 016627.
• 171. Other agencies, including the Seattle Police Department, West Virginia Intelligence Fusion Center, and Pennsylvania JNET, have general policies or procedural orders that limit what and how information about a person’s religious, political, or other affiliation may be gathered and retained by the agency. Seattle Police Department, Email from Karim Miller to Clare Garvie (Sept. 13, 2016), Document p. 016829 (“Information will be gathered and recorded in a manner that does not unreasonably infringe upon: individual rights, liberties, and freedoms guaranteed by the Constitution of the United States and the State of Washington, including freedom of speech, press, association, and assembly . . .”); West Virginia Intelligence Fusion Center, Privacy Policy, Document p. 009926 ("The WVI/FC will not seek or retain information about individuals or organizations solely on the basis of their religious, political, or social views or activities; their participation in a particular noncriminal organization or lawful event”); Pennsylvania JNET, Pennsylvania JNET Privacy Policy, Document p. 016804 (“JNET . . . does not seek and/or retain information about individuals solely on the basis of their religious, political, or social views or activities; their participation in a particular noncriminal organization or lawful event . . . “). The PIA articulates the importance of expressly prohibiting the use of face recognition specifically on protected activities—face recognition is an identification tool, and “[t]he potential harm of identification is that it increases the government’s power to control individuals through the chilling effects.” The International Justice and Public Safety Network, Privacy Impact Assessment: Report for the Utilization of Facial Recognition Technologies to Identify Subjects in the Field (June 30, 2011), Document p. 016648.
• 172. Ohio Bureau of Criminal Investigation, To Be Added 2016 Date TBD, Document p. 009218 (note this language was implemented in 2016 and replaced language that did not address the issue of the use of face recognition on First Amendment activities).
• 173. Criminal Justice Information Services Division, Federal Bureau of Investigation, U.S. Department of Justice, Interstate Photo System (IPS) Policy and Implementation Guide (Version 1.2) (Sept. 3, 2014), Document p. 009325.
• 174. The following states have access to the FBI face recognition database (NGI-IPS) and provided us with their use policy: Hawaii; Maryland; Michigan; and Florida.