Terry H. Schwadron
Sept. 7, 2021
The new Texas abortion law has re-opened the debate not only about abortion and vigilantism, but also about privacy.
There also are other news developments of late pushing privacy into the forefront, from subpoenas for congressional phone calls and social media posts concerning planning for the Jan. 6 insurrection at the U. S. Capitol — and the threats from Republican leaders to telecoms to resist compliance, to misinformation being circulated towards covid vaccine compliance because of health information privacy.
These skirmishes either focus on privacy for its own sake or are being used as weapons in the politics of enforcing or resisting government policies. In short, regardless of political orientation, these fights show that the right to privacy is both under attack and being used clumsily in pursuit of other goals.
Amidst all this turmoil, there was a new government report that shows that the federal government is moving to expand its use of facial recognition technologies despite growing concern that have prompted several states to block its use in law enforcement.
Americans don’t know what should and should not be private, and over time, show that they don’t know how to settle the question.
The new law in Texas relies on — actually incents — citizens to spy on one another to rat them out through lawsuits to enforce the state’s would-be new limitations. Final court action is pending, but the U.S. Supreme Court did not stop its launch, though a local judge is trying to stop it from taking hold. The law lays out a path for private citizens to track anyone who helps a patient getting an abortion, from doctors and nurses to clinical staff to Uber drivers, to file lawsuits that will be impossibly expensive to defend. The effect, naturally, is to halt virtually all abortion in Texas.
But the tool is an attack on personal privacy — a right never spelled out in the Constitution, but addressed more formally than say gun rights, or for that matter, the right to abortion.
When the Jan. 6 Congressional panel reviewing the Capitol attacks called for telecoms and social media company records, House Minority Leader Kevin McCarthy threatened that as Republicans win back the House, they would not forget. He and Rep. Marjorie Taylor Greene, R-Ga., now could face a referral to the House Ethics Committee essentially for what is seen as an attempt to obstruct Congressional subpoenas to the telecoms. McCarthy is doing so to protect himself and other Republican lawmakers from what he sees as partisan questions about efforts to cooperate with insurrectionists.
Likewise, Republican state governors and vaccine resisters are using health privacy as an argument against public health mandates by local governments, schools or businesses for vaccine or mask mandates.
Walking All Over Privacy
There are lots of ways to argue about these individual use cases. But what they have in common is their common, if disparate, reliance on privacy as a base American value.
In that light, it was surprising to learn that ten federal agencies plan to expand use of facial recognition to pursue criminals and scan for threats, a direct hit on the privacy issue at a time when concerns are growing about the technology’s potential for contributing to improper surveillance and false arrests.
The departments of Agriculture, Commerce, Defense, Homeland Security, Health and Human Services, Interior, Justice, State, Treasury and Veterans Affairs told the Government Accountability Office they intend to grow their facial recognition capabilities by 2023, the GAO said in a report made public last week.
It’s one thing, of course, to use face-scanning technology to allow employees to unlock their phones and laptops or access buildings, and quite another to use it for law enforcement purposes.
Virginia, Massachusetts, Maine and more than a dozen cities, including Boston, Portland, and San Francisco, have banned, or restricted the technology’s use by public officials or police because of serious problems in accuracy. The technology does less well with non-white faces, for example, among other factors, and has led to false arrests. Both Democrats and Republicans voiced concerns about the technology during a House Judiciary Committee hearing last month, and in the Senate, Ron Wyden, D-Ore., and Rand Paul, R-Ky., have introduced a bill that would ban the government from using facial recognition systems that relied on data that had been “illegitimately obtained.”
The GAO report said agencies want to expand use of the software. Agriculture wants to use it to monitor live surveillance feeds at its facilities and send an alert if it spots any faces also found on a watch list. The GAO said several agencies, including the Justice Department, the Air Force and Immigration and Customs Enforcement, reported that they had used one facial recognition software package that has faced lawsuits from privacy groups and legal demands from Google and Facebook after it copied billions of facial images from social media without their approval.
Immigration and Customs Enforcement, which uses databases of driver’s licenses, license plates and private utility records to pursue immigration violations or other crimes, said it had awarded a contract to enhance its facial recognition system with a database of “transnational gang members.”
U.S. Customs and Border Protection officials, who have called the technology “the way of the future,” said earlier this month that they had run facial recognition scans on more than 88 million travelers at airports, cruise ports and border crossings. The systems, the officials said, have detected 850 impostors since 2018 — or about 1 in every 103,000 faces scanned.
Facial recognition has helped the FBI make arrests of Jan. 6 insurrectionists as well.
What Are the Rules?
Along with expanding use comes the arguments about whom and how to surveil faces, what data are used to create the pool against which selected photos are compared, and just what legal laws and regulations are in place to govern what happens. Plus expect fights over which software is used, especially given Congress’ on-off infatuation with various tech giants who own these software packages.
The government’s expansion comes as major tech companies have pushed to stall law enforcement’s adoption of the software. Amazon said in May that it had stopped selling its facial recognition software to U.S. police, citing the lack of federal laws governing how the software should be used.
Remember that, as a country, we haven’t decided fully when and how Apple, Google and phone companies must open their encrypted services even in an FBI investigation of terrorists. Now we’re incenting Texans to spy on their newly pregnant neighbors, as if that is a perfectly normal thing.
The GAO is urging stricter limits on facial recognition even as it surveys that usage is growing. In June, the GAO said that 20 federal agencies have used either internally developed or privately run facial recognition software, even though 13 of those agencies said they did not “have awareness” of which private systems they used and had therefore “not fully assessed the potential risks … to privacy and accuracy.”
Jake Laperruque, a senior counsel at the Project on Government Oversight, an independent watchdog group in Washington, told reporters that
“Even with all the privacy issues and accuracy problems, the government is pretty much saying, ‘Damn the torpedoes, full speed ahead.’”
Naturally, we’re also having this discussion in a year in which people are wearing masks for covid protection, bringing further inaccuracy to widespread use of the technology. The State Department said it has been researching how the process of aging could affect the systems’ accuracy for assessing children’s passport photos, the GAO report said.
In the end, the GAO report did not address effectiveness of these software packages, only the desire to increase reliance on them, regardless of the outcome.
Among all the concerns we are expressing from various political viewpoints about growing “authoritarianism” of government, perhaps a discussion of the importance of privacy has become a yet more important debate that we’re missing.