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Don’t Let the Riots Legitimize Facial Recognition Tech

The Capitol incident should be condemned, but mass arrests and widespread surveillance should not be celebrated.

Earlier this month, a pro-Trump mob unlawfully breached the United States Capitol, hoping to “stop the steal” by interfering with the Electoral College vote count. In a positive deviation from the norm, Americans are coming together to denounce political violence, calling for the swift arrests of the perpetrators. What’s troubling, however, is law enforcement’s use of the same invasive technologies that, just a few months ago, caused a wave of backlash and prompted big tech to terminate government contracts. While Americans rally around this national manhunt, they should keep a watchful eye on their Fourth Amendment rights.

Sure, the rioters assaulted police officers in the name of a president who championed “law and order,” — their hypocrisy is astounding. But greater dangers lie ahead if we all follow suit and pursue accountability with an “ends justifies the means” mindset.

Americans are eager to see the rioters apprehended, not just because of what they did, but because of how they got away with it. There were thousands of rioters at the Capitol on January 6, yet the police only apprehended 13 people that day.

Since the incident, the FBI has arrested over 100 people and identified over 200 suspects using a swath of data from social media, surveillance cameras, and cellphones. More than 140,000 photos and videos have been collected by the FBI and, according to Steven D’Antuono, the assistant director of the FBI’s Washington Field Office, they are “scouring every one for investigative and intelligence leads.”

These investigations are shrouded in secrecy—the FBI is not often forthcoming about its tactics—but there is evidence that local police departments, working collaboratively with the federal agency, are being aided by facial recognition tools. An Alabama police department identified several suspects from the siege using technology provided by Clearview AI. On January 7, use of the company’s facial recognition technology increased by 26 percent.

Clearview AI doesn’t have any contracts with private businesses. After public fallout and a flurry of lawsuits over the company’s collection of billions of online photos without consent, Clearview AI voluntarily terminated its commercial contracts. In a legal filing from last year, the company committed to “cancelling the accounts of every customer who was not either associated with law enforcement or some other federal, state, or local government department, office, or agency.” This means that police must be fueling the recent spike in searches.

We’ve seen this before. Police used facial recognition software to find and arrest protesters during the demonstrations for Michael Brown in 2014, Freddie Gray in 2015, and, most recently, George Floyd in 2020. There is a growing, alarming pattern of facial recognition being used after protests. And until recently, this development had been hotly contested. But today, this technology’s application is being applauded. Talk about hypocrisy. Facial recognition tech is the cornerstone of modern, government mass surveillance and should be met by the same scrutiny upon each instance of police use.

The Fourth Amendment prohibits the government from engaging in “unreasonable searches and seizures.” According to the Supreme Court in the landmark case Katz v. United States: “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. …But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” Social media and surveillance cameras, analyzed by facial recognition software, test the boundaries of law enforcement’s jurisdiction. The FBI has admitted to following the data trail, even though it blurs the distinction between private and public spaces.

The Supreme Court has not yet addressed facial recognition, though it has acknowledged that new technology challenges the Fourth Amendment and, in recent cases, has constrained the ability of police to engage in such searches.

Facial recognition systems can also be inaccurate, resulting in false-positive scans for Asian, African-American, and female subjects. In several instances, this technology has led police to arrest and jail innocent people.

The events of January 6 were certainly atrocious, but celebrating mass arrests enabled by facial recognition, GPS tracking, and data collection yields no benefit for our country and heaps on hypocrisy after hypocrisy. If the rioters besmirched our constitutional government, let’s not make matters worse by torching our civil liberties.

Rachel Chiu is a Young Voices contributor who writes about technology public policy and civil liberties. Follow her on Twitter @rachelhchiu.

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