Blog by Carol Rose, Executive Director, ACLU of Massachusetts
The First Amendment right to record the police is a critical check and balance for people living in a free, open, and democratic society. It promotes the free discussion of governmental affairs as well as protects the democratic process. And for some communities, it’s a vital tool for uncovering, if not deterring, police misconduct.
But Boston-based civil rights activists Eric Martin and René Pérez were afraid to record the police. Under a state wiretap law passed in 1968, known as Section 99, it is a crime to secretly record private individuals and government workers, even those on duty like police officers. Since 2011, the Boston Police Department has applied for a criminal complaint against at least nine people for secretly recording police officers performing their duties in public, and the Suffolk County District Attorney’s Office has opened numerous case files based on this felony charge as well.
Because of this fact, although Martin and Pérez often feared for their safety when openly recording police officers in public, they also knew recording secretly could subject them to arrest and prosecution. Caught between safety concerns and fear of punishment, they often chose not to record at all.
But that’s about to change.
Two years ago, the ACLU of Massachusetts filed a lawsuit, Martin v. Gross, on behalf of Martin and Pérez, arguing that they have every right under the First Amendment to secretly record police officers carrying out their duties in public. This week, a federal court agreed.
Taking photographs, video, and audio in public spaces is a constitutional right — and that includes law enforcement officials carrying out their duties. The defendants in this case argued that they could lawfully apply Section 99 to prevent individuals from secretly recording police officers performing their duties in public. In her recent ruling, Judge Patti B. Saris of the United States District Court for the District of Massachusetts called that application of the wiretap law unconstitutional.
The court explained that police officers have “diminished privacy interests” when performing their job in public, while the public has a constitutionally protected interest in newsgathering, information-dissemination, and monitoring the conduct of law enforcement officials. The parties must now submit proposed language for an order implementing the court’s decision by January 10.
The ACLU of Massachusetts has long championed the right to record the police in the public performance of their duties. In another ACLU case, Simon Glik openly recorded Boston police officers when they treated a man too roughly on the Boston Common. Glik himself was then arrested for his constitutionally protected behavior. In 2011, the U.S. Court of Appeals for the First Circuit unanimously affirmed that he had a First Amendment right to record the police carrying out their duties on the Boston Common.
Although the fact pattern in Glik happened to involve an open recording, the First Circuit did not so limit its First Amendment ruling. Judge Saris’ ruling evokes Glik’s protection of both the open and secret recording of police officers performing their duties in public, reiterating that “the First Amendment’s protection for information-gathering has special force with respect to law enforcement officials who are granted so much discretion in depriving individuals of their liberties.”
In recent years, the exercise of this First Amendment right has changed the public’s understanding of encounters between police officers and the public. Time and time again, people’s recordings of police interactions have started national conversations about police reform and accountability, from Eric Garner to Philando Castile to Sandra Bland. As the Trump administration welcomes a new attorney general who opposes Obama-era police reform and civil rights work, all of us play an increasingly important role in keeping the local police in check.
This week’s decision will help ensure that we have the tools to do so.
Learn about the case
Date
Friday, December 14, 2018 - 5:00pm
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Blog by Kade Crockford, director of the ACLU of Massachusetts Technology for Liberty Program.
Last night, the Cambridge City Council unanimously voted to approve an ordinance requiring community control over police surveillance. Under the ordinance, City agencies including the police are required to seek City Council permission before buying, acquiring, or otherwise using new surveillance technologies. The City Council must also approve a policy to govern the use of each technology. Agencies are required to submit for Council approval all existing technologies, as well as surveillance impact assessments outlining the estimated costs and benefits of adopting the tools.
The passage of the ordinance last night was the culmination of over two years of work by the ACLU, Cambridge residents, the City, and members of the City Council. The ACLU is especially grateful to Mayor Marc McGovern and his chief of staff Wil Durbin for their leadership and stewardship of the ordinance over the years.
At the Council meeting last night, Councilor Craig Kelley suggested some modifications to the ordinance, some of which were accepted on a voice vote. The changes that took effect last night are outlined in bullet points 1, 2, and 4 in Councilor Kelley’s letter to the Council. Besides those small changes, this November 2018 version of the ordinance is the one that became law last night. Once the Council Clerk has posted the final ordinance online, we will post it here.
The ordinance takes effect nine months from the day of its passage. We at the ACLU look forward to working with the City of Cambridge in 2019 to implement the ordinance to ensure the City’s use of surveillance technology happens in a democratic manner, with the knowledge and participation of the public, and with robust elected official oversight.
Cambridge’s ordinance is the second passed by a Massachusetts City Council in 2018. In September, the Lawrence City Council passed a similar law.
Learn more about community control over police surveillance
Date
Tuesday, December 11, 2018 - 3:00pm
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Blog by Jacob Snow, Technology & Civil Liberties Attorney, ACLU of Northern California. Originally published on ACLU's Speak Freely.
Recently, a patent application from Amazon became public that would pair face surveillance — like Rekognition, the product that the company is aggressively marketing to police and Immigration and Customs Enforcement — with Ring, a doorbell camera company that Amazon bought earlier this year.
While the details are sketchy, the application describes a system that the police can use to match the faces of people walking by a doorbell camera with a photo database of persons they deem “suspicious.” Likewise, homeowners can also add photos of “suspicious” people into the system and then the doorbell’s facial recognition program will scan anyone passing their home. In either case, if a match occurs, the person’s face can be automatically sent to law enforcement, and the police could arrive in minutes.
As a former patent litigator, I've spent a lot of time reading patents. It’s rare for patent applications to lay out, in such nightmarish detail, the world a company wants to bring about. Amazon is dreaming of a dangerous future, with its technology at the center of a massive decentralized surveillance network, running real-time facial recognition on members of the public using cameras installed in people’s doorbells.
The ACLU and other civil rights groups have repeatedly warned that face surveillance poses an unprecedented threat to civil liberties and civil rights that must be stopped before it becomes widespread. The history of discriminatory government surveillance makes clear that face surveillance will disproportionately harm people already targeted by the government and subjected to racial profiling and abuse — immigrants, people of color, and the formerly incarcerated.
The ACLU’s test is consistent with academic research demonstrating that face surveillance technology is less accurate for darker skinned faces and women. These systems threaten to further entangle people with law enforcement, ripping families apart and increasing the likelihood of racially biased police violence. In addition, this technology puts activists and protesters in danger when exercising their First Amendment rights.
Despite the risks to civil liberties and racial justice, Amazon has chosen to ignore questions from members of Congress and calls from consumers, civil rights groups, and its own employees and shareholders to take responsibility for the consequences of its technology on communities where it is deployed.
This patent application also suggests that Amazon has no plans to stop at identifying people based on their faces. The company anticipates targeting an arsenal of other biometrics, including fingerprints, skin-texture analysis, DNA, palm-vein analysis, hand geometry, iris recognition, odor/scent recognition, and even behavioral characteristics, like typing rhythm, gait, and voice recognition.
Imagine if a neighborhood was set up with these doorbell cameras. Simply walking up to a friend’s house could result in your face, your fingerprint, or your voice being flagged as “suspicious” and delivered to a government database without your knowledge or consent. With Amazon selling the devices, operating the servers, and pushing the technology on law enforcement, the company is building all the pieces of a surveillance network, reaching from the government all the way to our front doors.
Don’t expect Amazon to limit tracking technologies to doorbells or homes. The patent application makes clear that any audio/visual device — such as Amazon’s popular line of Echo products — can be outfitted with the appropriate biometric surveillance features. It confirms that Amazon wants to enable the tracking of everyone, everywhere, all the time. And it’s apparently happy to deliver that data to the government.
The application also undercuts Amazon’s own purported defense of its face surveillance product. The company has told the public that biometrics should only be used by law enforcement as an aid, not a replacement, to human judgment. But Amazon’s patent application is pushing the technology toward automation, removing human judgment from the identification process, and instead potentially relying on data, like arrest photos, that itself is a record of racially discriminatory policing.
Amazon is building the tools for authoritarian surveillance that advocates, activists, community leaders, politicians, and experts have repeatedly warned against. It is doing so without regard for how the technology will be exploited by law enforcement, ICE, and other government agencies prone to violence and racial discrimination. It’s time for Amazon to take responsibility and stop chasing profit at the expense of safety and civil rights.
Date
Wednesday, December 12, 2018 - 6:00pm
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