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Blog by Kade Crockford, director of the ACLU of Massachusetts' Technology for Liberty Program

Facial recognition systems are computer programs designed to analyze images of human faces to identify and track people at a distance, without their knowledge or consent. Behind closed doors, face surveillance companies are preying on our local governments, trying to use our families and communities as guinea pigs for their private financial gain. Private companies marketing this technology to government agencies boast that it can monitor people in real-time, reconstruct past movements from video footage, and uniquely identify hundreds of individuals from a single photo.

Face surveillance technology gives the government unprecedented power to track who we are, where we go, what we do, and who we know. But in tech hubs from San Francisco to Somerville, the ACLU is fighting back—and we are winning.

Last month, our colleagues in San Francisco were instrumental in passing the nation’s first face surveillance ban, blocking government agencies from using the technology. Here in Massachusetts, we are working with Somerville City Councilor Ben Ewen-Campen and his colleagues to do the same. And on Beacon Hill, we are taking action to make sure that no matter where you live in the Bay State, technology like face surveillance doesn’t get out ahead of our basic rights.

Legislation introduced by Senator Cindy Creem and Representative Dave Rogers would place a moratorium on state and local government’s use of face recognition and other “at-a-distance” biometric surveillance technologies, like iris, voice, and gait recognition. If enacted, the moratorium would remain in place until the state legislature passes a law authorizing specific uses, and protecting racial and gender justice, due process, privacy, and free speech.

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It’s not a surprise that the nation’s first face surveillance ban was enacted in Silicon Valley, the heart of the nation’s technology industry. After all, the people who build systems like face surveillance know how powerful and dangerous they are, especially in the absence of government regulation.

We are confident we will be able to pass bans in our own tech strongholds here in Massachusetts. And emails obtained by the ACLU of Massachusetts show we need to do it fast.

In explosive emails published on the ACLU’s Data for Justice website, a CEO of a Massachusetts-based face surveillance start-up acknowledges his technology might only work 30 percent of the time, but nonetheless aggressively pushes its adoption in schools, government buildings, and public streets—all in secret, with no public debate or buy-in from elected officials.

The emails reveal Suspect Technologies, a start-up funded by billionaire Mark Cuban, has been aggressively pushing face surveillance technology on the police department in Plymouth, Massachusetts, a South Shore town home to approximately 60,000 people, for over two years—all in secret. The documents are a chilling wake up call for lawmakers in Massachusetts, where the government’s use of the controversial—and too often inaccurate—technology has gone largely under the radar.

The CEO of Cambridge-based Suspect Technologies, Jacob Sniff, worked relentlessly over a period of more than two years to get Plymouth Police Department Chief Michael Botieri to adopt his face surveillance technology, despite the fact that the town government and public were apparently kept entirely in the dark about the plans. The emails show Sniff sought access to the state’s drivers license database to train his private algorithm, and asked the Plymouth Police Chief for access to video footage of people in Plymouth, so he could use the video to develop his technology.

The emails show Suspect Technologies and the Plymouth Police planned to use face surveillance tech in schools and other public buildings, absent any public debate or democratic oversight. When the ACLU found out about the plans and informed journalists, the police appeared to back away from them.

The use of these technologies is particularly dangerous for women and people of color. Numerous studies have shown that face surveillance technologies are inherently racially biased, particularly against Black women. MIT researcher Joy Buolamwini found that Black women were 35 percent more likely to be misidentified by the technology than white men. 

In light of these concerns, last month the House Oversight Committee held a hearing in Congress, during which advocates described how the technology is spreading, under cover of secrecy, throughout state and local government nationwide. In Detroit and Chicago, an expert testified, local governments have begun using real-time face surveillance on the thousands of surveillance cameras controlled by police in those cities. This is happening despite the fact that neither Michigan nor Illinois legislators authorized its use, and that there are no statutory protections to ensure people’s rights are safeguarded in this brave new digital world.

During his testimony at that hearing, law professor Andrew Ferguson warned that waiting around for Constitutional violations and court remedies won’t save us from digital dystopia.

"The Fourth Amendment will not save us from the privacy threat,” Professor Ferguson said. “The Supreme Court is making solid strides in trying to update Fourth Amendment principles in the face of these new technologies, but they’re chasing an accelerating train and will not catch up. Only legislation can respond to the real-time threats of real-time technology.”

We agree. It’s time for the Massachusetts state legislature to #PressPause on the use of this dangerous technology. Take action today to join the movement to protect our rights in the digital age. Sign our petition, and share it with five of your friends.

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• Read more about Face surveillance technology gives government unprecedented power

The Drug Enforcement Administration is once again trying to access private prescription records of patients — this time in New Hampshire — without a warrant, despite a state law to the contrary. Today the ACLU filed a brief in support of the state of New Hampshire’s fight to defend the privacy of our sensitive medical information against unwarranted searches by law enforcement.

New Hampshire — like 48 other states, the District of Columbia, and Puerto Rico — has established a statewide Prescription Drug Monitoring Program (PDMP), which logs records of every prescription for a long list of “controlled substances,” including Xanax, Ambien, and many painkillers, filled by pharmacists in the state. The PDMP is intended to function as a public health tool to allow physicians and pharmacists to look up their patients’ past prescriptions for medications that have addictive potential. Because these prescription records are so sensitive, New Hampshire law bars law enforcement agents from accessing the database unless they have a search warrant signed by a judge.

That rule has worked just fine for state and local police, but the federal Drug Enforcement Administration refuses to respect it. The DEA insists that, because it is a federal agency, it can ignore state law and request people’s PDMP records with an administrative subpoena instead of a warrant. Unlike a warrant, a subpoena is issued directly by the agency based on a low legal standard, without requiring the approval of a judge.

When New Hampshire received a DEA subpoena for a patient’s PDMP records last year, the state rightly refused to comply because doing so would violate the state law requiring a warrant. The DEA then sued in federal court, but New Hampshire stood firm, arguing that the subpoena was improper under federal law and the Fourth Amendment to the U.S. Constitution. After losing in trial court, the state appealed to the First Circuit Court of Appeals.

The DEA’s most galling argument in the case is that people have no reasonable expectation of privacy in their prescription records held in the PDMP because of the “third-party doctrine.” Under that doctrine, a person is considered to lose their Fourth Amendment protections in information voluntarily shared with a “third party,” like a company they do business with.

We’ve seen that argument before when the DEA tried to obtain PDMP records in Oregon and Utah without a warrant. But the legal landscape has now changed. That’s because last year in Carpenter v. United States, the Supreme Court made clear that the third-party doctrine does not automatically apply to sensitive agglomerations of digital-age records. That case was about people’s sensitive location records held by their cell phone companies, but the lesson of Supreme Court’s holding should apply equally to the sensitive digital database of prescription records at issue here.

Our amicus brief, filed with the ACLU affiliates in the First Circuit — New Hampshire, Maine, Massachusetts, Puerto Rico, and Rhode Island — as well as the New Hampshire Medical Society, argues that  law enforcement agencies, including the DEA, must get a warrant under the Fourth Amendment to access the private medical information in the PDMP database.

As we explain, information about the prescription medications we take can reveal a great deal of intimate and private details about our health, including our medical diagnoses and our doctors’ confidential medical advice. Indeed, this kind of medical information is among the most sensitive data about us. That’s why, for as long as there has been a medical profession, health care providers have been bound by a duty of confidentiality toward their patients’ medical information.

Moreover, this information is not voluntarily shared, in any meaningful sense, with the state’s database. The DEA suggests that people make a choice to give up their privacy protections when they share their medical information with their doctor and pharmacist. But as we write in our brief, choosing between obtaining health care and giving up one’s privacy rights is no choice at all.

The DEA’s aggressive position comes amid intensifying attention to the nation’s opioid addiction crisis. But far from hindering efforts to address that serious problem, strong Fourth Amendment protections are a crucial part of the solution. Successfully addressing drug addiction primarily requires public health approaches, not prosecutorial ones. Easy law enforcement access to medical records not only fuels mass incarceration, it deters patients from seeking necessary medical care.

Requiring the DEA to get a warrant ensures that people’s sensitive prescription records are only available to police when there is a real need. That’s good policy, and good Fourth Amendment law.

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Blog by Carol Rose, executive director of the ACLU of Massachusetts, and Rahsaan Hall, director of the Racial Justice Program at the ACLU of Massachusetts

A new bipartisan consensus is emerging in America around the need to reform the criminal punishment system – and about the difference that elected district attorneys can make by being part of the solution.

This country has the highest incarceration rate in the world, and Massachusetts is not immune. If our Commonwealth were its own nation, we’d have the 11th highest incarceration rate in the world. Mass incarceration in Massachusetts has exacted a particularly heavy toll on communities of color. The state’s prisons have the highest white-Latinx disparity in the country, with a Latinx imprisonment rate more than four times that of white people in the state. The rate is even higher for the state’s Black residents – seven times that of the white imprisonment rate in 2017.

The havoc this approach wreaks on families and communities is well documented. Families are separated. Unmanageable fines and fees burden people and families already struggling to make ends meet. And for people with substance use disorder, incarceration means an increased risk of relapse, overdose, and death. We cannot prosecute our way out of poverty, drug use, or mental health crises. 

A national bipartisan consensus on this has emerged. In a rare showing of bipartisanship, Congress last winter passed the FIRST STEP Act with important sentencing reforms. The Massachusetts legislature also embraced the criminal law reform wave last session, adopting sweeping changes that eliminate several mandatory minimums sentences, require collection and posting of critical arrest data, and raise the minimum age of juvenile court jurisdiction. 

The voters get it, too. There were more contested prosecutor races in 2018 than at any time in recent history. In Massachusetts, last November marked the first time since 1982 that there were five contested Massachusetts districts. For the first time in at least a generation, many voters were actually offered a choice between different visions for the criminal legal system. From Texas to Alabama, from Philadelphia to the Berkshires to Boston, down-ballot votes cast for district attorney rose by double digits.

In response, some longtime district attorneys are pushing back on change – suggesting they just take orders from the legislature. That’s laughable, given that DA’s frequently lobby to shape the law in state legislatures, often in ways that have harmed particularly Black and Latinx communities. Some DA’s resort to trotting out old tropes and racist dog-whistles, hoping to avoid accountability by invoking scare tactics from the 1980’s. Such approaches are insulting and belie the real-world power of the DA. 

Other district attorneys are showing just what a difference a DA makes. Take, for example, Middlesex County District Attorney Marian Ryan and Suffolk County District Attorney Rachael Rollins: Together, they recently filed a lawsuit to block federal immigration officials from arresting immigrants at courthouses. It’s the first time a district attorney’s office has filed suit against the Department of Homeland Security on this issue – a move that reflects the harmful impact that immigration enforcement at courthouses has on public safety for all.

Or, consider Berkshire County, where new District Attorney Andrea Harrington announced in February that the office would end its reliance on cash bail. The majority of Massachusetts people in jail are being held on bail – for weeks, months, and years. Too many people are behind bars because prosecutors continue to request bails that people can’t afford to pay. It doesn’t have to be that way.

The people of Massachusetts can and should expect more of our elected district attorneys. We live in a time of peril, when civil rights and civil liberties are under threat both at home and abroad. It’s time that all elected officials were held to answer to voters about the constructive role they will play – and policies they will propose – to keep America both safe and free.

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