There is no current analog for the kind of police surveillance made possible by pervasive, video-based face recognition technology. By enabling the secret and mass identification of anyone enrolled in a police—or other government—database, it risks fundamentally changing the nature of our public spaces.
Free Speech. When used on public gatherings, face surveillance may have a chilling effect on our First Amendment rights to unabridged free speech and peaceful assembly. This is something law enforcement agencies themselves have recognized, cautioning: “The public could consider the use of facial recognition in the field as a form of surveillance …. The mere possibility of surveillance has the potential to make people feel extremely uncomfortable, cause people to alter their behavior, and lead to self-censorship and inhibition.”
EFF supports legislative efforts in Washington and Massachusetts to place a moratorium on government use of face surveillance technology. The moratoriums would stay in place, unless lawmakers determined these technologies do not have a racial disparate impact, after hearing directly from minority communities about the unfair impact face surveillance has on vulnerable people.
Privacy. Supreme Court Chief Justice John Roberts wrote for the majority in Carpenter v. United States: “A person does not surrender all Fourth Amendment protection by venturing into the public sphere.” The Court, examining police use of historic cell-site location information, noted that for the government to “secretly monitor and catalogue every single movement” of someone across time unconstitutionally violated society’s expectations about what law enforcement can and should be able to do.
Face surveillance technology can facilitate precisely this type of tracking, locating where someone is and has been by the location of the camera that captures that person's face. If mounted on churches, health clinics, community centers, and schools, face surveillance cameras risk revealing a person’s “familial, political, professional, religious, and sexual associations,” the very “privacies of life” that the Supreme Court in Carpenter suggested receive protection under the U.S. Constitution.
Bias.The risks of face surveillance are likely to be borne disproportionately by communities of color. African Americans are simultaneously more likely to be enrolled in face recognition databases and the targets of police surveillance use. Compounding this, studies continue to show that face recognition performs differently depending on the age, gender, and race of the person being searched. This creates the risk that African Americans will disproportionately bear the harms of face recognition misidentification.