Congress Needs to Stop Race-Based Surveillance

On July 13, a bipartisan group of 25 members of Congress launched the Fourth Amendment Caucus to better organize and educate their colleagues in defense of the constitutional rights to privacy.

It couldn’t have come soon enough.

People in the United States and abroad have been subject to unprecedented levels of unwarranted surveillance, both online and off. The threat of such widespread surveillance has muted many voices, especially those using digital media to express political views or organize others in their communities.

Reps. Zoe Lofgren (D–California), Justin Amash (R–Michigan), Ted Lieu (D–California) and Tulsi Gabbard (D–Hawaii), who attended the launch event, stressed that it was the responsibility of Congress to protect the Constitution from law enforcement’s tireless push for increased access to our personal lives.

“While technology has allowed individuals to do unprecedented things, it has also allowed the government to follow us in extraordinary ways,” Rep. Lofgren said during the launch.

A panel of policy experts expanded on the various privacy threats faced by internet users and others — calling special attention to communities of color and political dissidents, who are disproportionately targeted and tracked by law enforcement.

Much surveillance today relies on sophisticated technology, not only for access to our communications and activities on the internet, but also to monitor our movements, scan our bodies and faces, and record our interactions with authorities.

Wherever and however such tracking occurs, the new caucus members stressed that protecting everyone’s Fourth Amendment rights is an integral American value.

During a panel discussion moderated by Demand Progress’ Sean Vitka, the ACLU’s Neema Singh Guliani and Georgetown Law’s Alvaro Bedoya took a hard look at disparities in government spying.

“Everyone is being watched, but not equally,” said Bedoya, citing the infamous FBI file on Martin Luther King Jr.

The FBI and NSA followed, wiretapped and bugged the civil rights leader — all under the cover of legal process but beyond public view and scrutiny. The orders to follow Dr. King were authorized by then-U.S. Attorney General Robert F. Kennedy.

It’s doubtful that they would have withstood any meaningful legal review as reasonable search and surveillance.

High-tech spying comes home

Such discriminatory surveillance continues today, with law enforcement focusing on political dissidents as well as racial, religious and ethnic minorities.

Law enforcement has found increasingly stealthy and invasive ways to target groups like Black Lives Matter and both environmental and anti-war activists. The dirty tricks used to disrupt the work of Dr. King and other activists during the 1960s can now be accomplished almost entirely with the flick of a switch.

Bedoya highlighted the growing use of facial-recognition technology.

The U.S. government keeps massive databases that include these records and other sensitive biometric information, including fingerprints, photos and iris scans, of tens of millions of people.

The FBI, along with state and local police, has the ability to search many of these systems without effective oversight. The FBI has even requested that its new database be exempt from federal privacy laws, from judicial review and from appeals processes designed simply to update records and correct factual errors.

Racial bias in law enforcement skews the number of police stops and arrests. These and other biases impacting our immigration policies result in a disproportionate number of records on immigrants and members of communities of color.

Additional research shows facial-recognition technology — advanced though it may be — misidentifying Black people at a significantly higher rate than white people. Unfortunately, for communities targeted by this technology, the end result is a dangerous mix of bad data, bad results and bad oversight.

According to the ACLU’s Guliani, stingray technology is a special concern.

Stingray devices are deployed nationwide to mock cellphone towers, allowing police to collect sensitive location information by intercepting wireless signals sent by the phone of every person in a targeted area. These wireless interference devices can be used to jam devices and disrupt individuals’ communications.

Unlike a wiretap, which requires a warrant issued by a judge based on individualized suspicion, facial recognition and stingray technologies are built to sweep up data on entire crowds or neighborhoods. They threaten the privacy rights of anyone within their reach, including thousands of innocent people at a time.

And while they make possible such bulk collection of data, these tools tend to be used by law enforcement in a discriminatory fashion, targeting certain kinds of communities and crowds.

These technologies were originally designed for use on battlefields. But domestic law enforcement agencies have quickly adopted them, and too frequently take a militaristic approach to policing the people they are meant to serve.

These technologies are also being used to investigate not just serious crimes but minor infractions, too, exposing some neighborhoods and demographic groups to excessive, near-constant surveillance.

Lack of community engagement and oversight

Far too often, police race to adopt new technologies without considering the potential harms or consulting with members of the communities they serve.

Law enforcement should be required to fully and publicly brief community stakeholders and civil liberties advocates on the adoption of any new technology. It’s the people and the law that give law enforcement departments the authority to police us; we should always have the right to oppose the use and abuse of tools that go too far and violate our freedoms.

Guliani stressed the importance of consultation between communities and law enforcement officers before these technologies are deployed, and suggested that funding for new surveillance technologies be tied to these talks.

If police want to deploy new tools, the proper privacy safeguards must be in place ahead of time.

Bedoya pointed out that at least one out of every five jurisdictions in the country already uses facial-recognition technology, yet there isn’t one state or federal law governing such use. Police are using these tools without warrants, court oversight, audits or transparency.

The FBI and local law enforcement have aggressively opposed efforts to reveal their policies for the use of stingray devices.

The FBI has forced local law enforcement to stay silent when asked how the secretive devices are deployed. And a Baltimore judge had to suppress key evidence in a murder trial after deciding that the use of a stingray device without a warrant amounted to an unlawful search and seizure.

There are numerous other tools law enforcement uses to engage in electronic surveillance.

While many investigations remain secret, we know that the Department of Homeland Security has been monitoring Black Lives Matter protests for nearly two years. DHS has collected information, including location data, on activists’ activities from public social media accounts, including on Facebook, Twitter and Vine.

And practices like predictive policing, which risk building police biases into the algorithms used to predict crime, are gaining momentum at the state and local levels.

As we analyze the consequences of such monitoring, we must remember the surveillance that haunted Dr. King. Just because something is done in the name of the law does not necessarily make it legal, let alone right.

While these new technologies may sometimes serve to keep the public safe, law enforcement must be open about the harms and transparent with the people it serves.

I’m glad to serve as a member of the advisory committee for the newly formed caucus. I will push the group to prioritize transparency and community engagement in policing practices.

The Fourth Amendment caucus has much to do for sure, but it can’t focus only on unwarranted mass surveillance.

It has to shine a light on the disproportionate impact government monitoring has on the people and communities these surveillance technologies target. It has to work to protect the free speech, privacy and civil rights of everyone in America.