Welcome to the surveillance state?!

The Center for Privacy & Technology at Georgetown University Law Center recently issued a report, “The Perpetual Line-Up,” which determined that half of the nation’s adults are in at least one facial-recognition database used by police or other authorities. The capture and use of these images from, for example, driver’s license photographs typically occurs with few restrictions or oversight. This is a striking revelation because it means Federal, State, and Local authorities maintain and use the personal data regarding millions of law-abiding citizens without notice to, much less permission from, those innocent people.

The Big Brother nature of the surveillance systems, standing alone, is deeply troubling. The application of these technologies however, also raises serious civil rights and civil liberties questions. Indeed, the relevant research has found a disparate impact caused by such surveillance systems because of the underlying bias in how and where authorities use the databases. This is particularly true when arrests, as opposed to successful prosecutions, largely dictate whose images appear in a given database.

More to the point, facial-recognition technologies can reflect and even perpetuate racial profiling that courts may consider to be discrimination. Such surveillance systems can also be used to monitor law-abiding citizens’ exercise of constitutional rights under the First Amendment to engage in political or religious expression and to associate freely with others based on political or religious affiliation. Under the circumstances, allowing such surveillance to continue unabated could lead to retaliation or other discriminatory policies and practices.

Fortunately, key national leaders have moved swiftly to address this direct threat to privacy and other fundamental rights. Fifty civil rights and civil liberties organizations – led by the American Civil Liberties Union, the Leadership Conference on Civil & Human Rights, and the Center for Democracy & Technology – have jointly petitioned the United States Department of Justice to investigate the use of facial-recognition technologies. In making this request, the civil rights and civil liberties organizations highlighted that the largely unregulated use of personal-image databases by Federal, State, and Local authorities presents a clear and present danger to the country’s core civil rights and civil liberties. Hopefully, the Department of Justice’s response will be immediate and decisive.