The George Floyd protests have reframed the debate around surveillance, encryption, and facial recognition The current spotlight on toxic law enforcement culture has propelled conversations about facial recognition and biometric surveillance into mainstream politics. Banning facial recognition is necessary to avoid automating racism and further institutionalizing white supremacy.

The United States is facing up to its racism during the most important election in memory. Ideas that had previously seemed impossible are now mainstream political conversation, and the Movement for Black Lives’ call to defund police, dismantle mass incarceration, and invest in communities has resonated around the world. What has drawn less public attention is the impact of these uprisings for racial justice on mass surveillance, civil rights, and digital free speech. 

The people power of this moment is overwhelming. Policy changes that were once dismissed as unrealistic have swept through even the most conservative states. Mississippi voted to remove the Confederate iconography from their state flag and Georgia passed a Hate Crimes bill. Minneapolis City Council voted to dissolve their police department, several cities have dramatically reduced budgets for law enforcement, and school districts are ending contracts with cops. Protesters are taking down Confederate statues (which are simultaneously defended by an Executive Order), protests are erupting far removed from major population centers, and estimates suggest that the Black Lives Matter uprising is the largest movement in US history. Some cops who have murdered Black people are being fired, arrested, and tried for their crimes. The people are demanding state governments to reopen closed cases and investigate their own law enforcement. 

Amidst these victories, the Trump administration is uniquely and openly hostile to dissidents, especially those fighting for racial justice. In the week following the surge in protests, the Justice Department gave the Drug Enforcement Agency the temporary power “to enforce any federal crime committed as a result of the protests over the death of George Floyd.” The most immediate threat identified in this development was the expansion of domestic surveillance targeting people participating in the uprisings. 

Although the DEA’s temporary power has yet to be renewed, on June 26 the Department of Justice announced the formation of a task force on “Violent Anti-Government Extremists.” The memo specifically references “Antifa,” an anti-fascism movement which Trump has attempted to classify as a terrorist entity despite the fact that there is no such organization and no evidence that the movement’s participants have been involved in protest violence.

 

Like biological or nuclear weapons, facial recognition is too dangerous to be mainstreamed.

This spotlight on toxic law enforcement culture has propelled conversations about facial recognition and biometric surveillance into mainstream politics. Banning facial recognition is necessary to avoid automating racism and further institutionalizing white supremacy. A government review of facial recognition technology concluded that all major algorithms exhibit consistent racial and gender-based biases, with white cisgender men the only faces reliably distinguished by facial recognition. The notoriously surveillance-focused Detroit Police have been forced to acknowledge that their facial recognition incorrectly identifies people up to 96% of the time, with a recent misidentification leading to the arrest and detainment of an innocent Black man. Other cities recognize the risks associated with facial recognition and have banned its use in law enforcement, with Boston recently becoming the eighth city (and largest on the east coast) to pass an ordinance against the technology. 

 

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Explicit use of the technology is the tip of the iceberg. Amazon’s Rekognition is available for use with the tech oligarch’s extrajudicial surveillance dragnet, Ring; and (far-right affiliated) Clearview AI‘s illegal database and racist algorithms—in addition to being marketed to law enforcement—is sold to any entity willing to pay for it. In a performative but hollow gesture of “solidarity” with racial justice uprisers, Amazon, IBM, and Microsoft all released statements about reducing or ending law enforcement partnerships using facial recognition. Just days before, Congressional Democrats introduced the Justice In Policing Act which included a provision to ban the use of facial recognition in body cameras.

On June 25, a historic bill was introduced in both chambers of Congress. The Facial Recognition and Biometric Technology Moratorium Act functionally bans government use of facial recognition and biometric surveillance until another bill is passed which extends the ban or regulates the technology. It also requires state and local agencies that receive federal funds to comply with the moratorium. 

As facial recognition is federally challenged for the first time, two Senate anti-encryption bills are being debated as well. The most recent bill, Lawful Access to Encrypted Data (LAED), doesn’t even pass the logic test because “limited encryption loophole” is an oxymoron. The bill would require encrypted devices, platforms, and services to be accessible on demand to the Justice Department, essentially requiring the inclusion of a backdoor, or an intentional vulnerability in the security included for government surveillance. 

The primary bill, the EARN IT Act, could essentially ban encryption except for a government-approved whitelist, decided by a commission of bureaucrats appointed by the Attorney General. It would let the government silence dissent too, by messing with Section 230 of the Communications Decency Act to give the Executive Branch the power to dictate what types of content websites are allowed to host. The amended version of the law did nothing to placate civil liberties advocates, with one addition further problematizing the legislation by giving states jurisdiction over Section 230 enforcement and empowering 50 jurisdictions to follow the Attorney General’s lead to ban encryption. 

Encryption is a pillar of digital infrastructure because it is how machines, networks, and individuals verify the identity of one another. It’s also fundamental for protecting critical infrastructure and sensitive data systems like electrical grids and medical information management. To be clear: Encryption cannot truly be banned because it’s just math. It will always exist – what is being challenged by Congressional surveillance hawks is who can use encryption, and who gets to decide what constitutes legitimate use. All encryption battles are waged with vague reference to protecting children from exploitation or finding missing persons. This narrative is government propaganda designed to distract from the fact that attacks on encryption are antithetical to free speech, privacy, and security. The EARN IT Act also directly threatens the sustainability of the current popular movement because without encrypted communications, we do not stand a chance at out-organizing the entrenched power holders of society. 

We know from Blueleaks—a document dump from Anonymous-affiliated hackers and published by Distributed Denial of Secrets—that federal agencies are scraping private messaging platforms (including Slack channels), combing through social media RSVPs to identify and track protesters, and using surveillance drones to follow and arrest people. We also recently learned that the FBI has access to even greater quantities of user location data (based on a disclosed contract with Venntel, Inc) and unprecedented capacity to monitor social media (based on a disclosed contract with Dataminr). 

As this uprising continues to develop, we must internalize what it means to threaten the most powerful entities on this planet. Highly effective movements are always targeted, not just by the government but by corporate interests as well. 

In the face of escalating authoritarianism, it is critical that we impede the expansion of both corporate and government mass surveillance. The momentum is on our side. This year alone, grassroots organizing stalled the PATRIOT Act reauthorization and successfully pressured Zoom to encrypt all accounts (not just paid accounts). Legislators have advanced historic legislation, including a digital equity bill to address the digital divide by investing in broadband development for underserved parts of the United States. Another bill introduced by Representative Anna Eshoo (D-CA) would ban political microtargeting on social media (which is directly implicated in both Brexit and Trump’s election, see Cambridge Analytica). Relatedly, Amazon, Google, Facebook, and Apple are facing  antitrust investigations, brought by the Federal Trade Commission, that threaten to break up the data oligarchy. 

The Trump administration’s intense reaction to the racial justice uprising is evidence of the existential threat posed by uniting all different kinds of people into a movement for collective liberation. As the COVID-19 pandemic leaves frontline workers without adequate personal protective equipment, defunding the police and investing in communities would reflect investment in care for citizens and divestment from state violence. 

In order to insulate the movement for collective liberation for the long fight ahead, we must fight for our digital rights right now. We must recognize mass surveillance as a digital mutation of mass incarceration. Egalitarian access to encryption offers the people a fighting chance, but if we lose it we may never get it back. Mass surveillance will always disproportionately impact people of color, algorithms will always embody the biases of the dominant culture, and facial recognition will always represent an existential threat to everyone’s civil liberties. 

Anything is possible right now. Recognizing the criticality of this moment, here are some ways you can take a stand for algorithmic and racial justice:

 

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