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Banning Facial Recognition in Chicago: A Moral and Legal Necessity

By Michael Drake on Thursday, October 17th, 2019
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The right to privacy has been enshrined in human rights instruments since the Universal Declaration on Human Rights.[1] As technology advances, our society has to weigh the costs of reducing privacy against possible benefits such as societal safety, innovation, and economic growth.[2] Among the most controversial new technologies is facial recognition software. While there are a variety of uses for this technology,[3] it is primarily discussed as a tool to increase public safety.[4]

Recently, this discussion has begun to increase, forcing U.S. cities to grapple with the issue of facial recognition. At the tail end of July 2019, Motherboard reported that at least 200 police departments have entered into contracts with Ring, Amazon’s home surveillance company.[5] Ring has insisted that its surveillance technology—doorbells equipped with cameras—do not utilize facial recognition technology.[6] However, Amazon applied for a patent in 2018 to protect a network of cameras working together with facial recognition technology to identify specific persons: “The application describes creating a database of suspicious persons. Unwanted visitors would be added to the list when a homeowner tags them as not authorized. Other people could be added to the database because they are a convicted felon or registered sex offender[.]”[7]

Also towards the end of July 2019, in People v. Bass, the First District of the Illinois Court of Appeals held investigative searches unconstitutional under the Illinois Constitution.[8] There, the appellate court acknowledged that investigative alerts are constitutional under the United States Constitution, but unconstitutional under the Illinois Constitution.[9] This ruling is significant as it shows that Illinois courts are not in complete “lockstep” with the U.S. Constitution, as some have suggested.[10] In other words, Illinois is willing to extend its residents more constitutional protection under the Illinois Constitution than the federal government extends to U.S. citizens under the U.S. Constitution, in certain situations. Of course, this decision is still subject to review by the Illinois Supreme Court. However, it shows—as other cases have—that Illinois courts are willing to extend additional privacy protections to Illinois citizens.[11]

Within the context of electronic surveillance, especially electronic surveillance utilizing facial recognition technology, a number of moral concerns arise. These moral issues are compounded by legitimate legal issues with facial recognition technology.[12] At the heart of the morality issue is the question of how much privacy we are willing to give up in the name of societal safety.

Banning Facial Recognition in Chicago: A Moral Necessity

 The issues raised by facial recognition software are numerous: The technology often misidentifies people, in one instance 98% of people “identified” by facial recognition technology were incorrect; the misidentification issue is more prevalent when attempting to identify women and people of color; there is little to no oversight of law enforcement using this technology, officers can often view “matches” without a warrant, probable cause, or reasonable suspicion; and, the risk of the technology being used to enact an authoritarian regime in the U.S.[13] These fears are not abstract. Over the last few months, journalists and researchers have drawn attention to a variety of alarming stories involving facial recognition technology, including police departments using pictures of athletes and celebrities to “match” with suspected criminals;[14] the realization that at least 50% of Americans are in some form of police facial recognition database;[15] and, that the FBI and Immigration and Customs Services(“ICE”) are utilizing facial-recognition technology to scan millions of driver’s licenses—without the consent of the individuals, state legislators, nor federal legislators.[16]

Recognizing the number of problems this technology presents, Somerville, Massachusetts and Oakland, California have recently banned the use of it.[17] These cities now join San Francisco—the first city to ban facial recognition technology—as the only three cities in America to outlaw its use.[18] The fact that San Francisco was the first city to ban facial recognition technology should, standing alone, raise concerns: How well would the Model-T have sold if Detroit banned its use within city limits?

Within the context of Chicago, the lack of police accountability raises significant concerns. The history between Chicago residents and Chicago police has been—to put it lightly—checkered. Based on this history, Chicago residents, especially residents of color, have good reason to fear unfettered police actions: On December 4, 1969 Chicago Police Officers murdered Fred Hampton, then worked tirelessly with the FBI to cover it up;[19] on February 10, 1993 the Chicago Police Department fired Jon Burge after two decades of torturing Black Chicago residents with impunity,[20] despite his firing he received $4,000 a month in pension payments until his death;[21] on June 12, 2018, former Chicago Police Detective Reynaldo Guevara invoked the Fifth Amendment over 200 times in a civil rights trial brought by Jacques Rivera, one of at least 18 people that were framed by Guevara;[22] on July 25, 2019, the Chicago Police Department issued an apology for collecting information and running background checks on citizens that spoke at public meetings for Chicago’s police disciplinary panel,[23] a later investigation would show this practice dates back to at least 2006;[24] and, on July 29, 2019, Chicago’s Civilian Office of Police Accountability(“COPA”) cleared Sergeant John Poulos in the fatal shooting of Kajuan Raye, citing a gun found three months after the shooting—no gun was found on or around Kajuan the night he was shot.[25]

As of today, Chicago has one of the most advanced surveillance apparatuses in the world.[26] Lucy Parsons Lab, a research collaborative, has identified over 50,000 cameras active in Chicago.[27] This does not include cameras within Chicago’s “Private Sector Initiative.”[28] The Private Sector Initiative grants the Chicago Police Department access to cameras utilized by private businesses, the specific businesses that consent to this program and where those cameras are remains unknown.[29] Further, in September, the Chicago Police Department announced it would soon begin a “pilot program” with Ring.[30] The proposed agreement would allow police to contact private citizens to obtain video recorded by Ring doorbells—without any judicial or legislative oversight.[31] Combining a Ring partnership with the extensive Chicago surveillance apparatus—which includes the Private Sector Initiative—would give the Chicago Police Department unparalleled surveillance capabilities.

In line with the history of Chicago and its police department, data on facial recognition in the city is hard to obtain. While it is known that the Chicago Police Department has requested funding for facial recognition technology and runs the technology on mugshots, it is unknown whether they currently run facial recognition against real-time or archived video.[32] There is no publicly available policy governing the use of facial recognition in Chicago.[33] As such, it is unknown what is required, if anything, to authorize officer use of facial recognition technology.[34] Given the clouded, racist, and secretive nature of the Chicago Police Department, the moral imperative is clear: ban the use of facial recognition in Chicago.

Banning Facial Recognition in Chicago: A Legal Necessity

Unlike the U.S. Constitution, the Illinois Constitution explicitly provides a right to privacy.[35] In other jurisdictions that provide an explicit right to privacy, such as Europe under Article 8 of the European Convention on Human Rights, unchecked mass surveillance has been ruled to violate that right.[36] It is clear that introducing facial recognition technology to a program that already violates privacy—without any legal justification—constitutes a violation of the right to privacy.

The First Appellate District’s recent decision in People v. Bass solidifies that argument. While that decision explicitly dealt with investigative alerts under the Illinois Constitution,[37] when paired with the recent United States Supreme Court decision in Carpenter v. United States it is clear that facial recognition technology in tandem with mass electronic surveillance is unconstitutional under the Illinois Constitution.[38]

In Carpenter, the Court held that law enforcement officials invade an individual’s reasonable expectation to privacy when they obtain cell phone records absent a warrant.[39] In arriving at that holding, the Court made it clear that the ability to trace a person’s location in public at any given time is a violation of privacy: “Critically, because location information is continually logged for all of the 400 million devices in the United States—not just those belonging to persons who might happen to come under investigation—this newfound tracking capacity runs against everyone.”[40]

Unlike in Carpenter, the Illinois appellate court held that investigative alerts by the Chicago Police Department do not violate the Fourth Amendment.[41] That question, though, was not dispositive.[42] In Bass, the court noted that significant amounts of discussion at the 1970 constitutional convention centered around eavesdropping devices and the right to privacy.[43] “We must presume, based on the drafters’ relative silence, that they acquiesced in the historical application of the limited lockstep doctrine, both where our supreme court has adhered to it and departed from it.”[44]

With both of those cases in mind, the ability for Chicago Police Officers to obtain information on the location of any individual in Chicago, at any time, for any purpose, without judicial oversight, violates the Supreme Court’s decision in Carpenter. If cell phone logs are subject to a reasonable expectation of privacy given that the logs provide officers with “the time-stamped data provides an intimate window into a person’s life, revealing not only his particular movements, but through them his familial, political, professional, religious, and sexual associations,”[45] so is an individual’s every movement in public.

Over the last decades, the Chicago Police Department has given residents minimal grounds for trust. Allowing the Chicago Police Department to utilize facial recognition technology is a recipe for unmitigated disaster. Rather than grappling with this issue, Chicago is about to enter into a contract with Ring—despite already having the largest surveillance network in the U.S.[46]  With all of this in mind, the course of action is clear: Ban the use of facial recognition in Chicago.

[1] See Universal Declaration of Human Rights, G.A. Res. 217A(III), art. 12, U.N. Doc. A/810 (1948); see also American Convention on Human Rights “Pact of San José, Costa Rica” art. 11, Nov. 22, 1969, 1144 U.N.T.S. 123 (providing the right to privacy); American Declaration on the Rights and Duties of Man, art. 5, OEA/Ser.L./V.II.23 (1948), available at https://www.oas.org/dil/access_to_information_human_right_American_Declaration_of_the_ Rights_and_ Duties_of_Man.pdf (last visited Aug. 12, 2019) (providing the right to privacy); International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families art. 14, Dec. 18, 1990, 2220 U.N.T.S. 3 (providing the right to privacy); Convention on the Rights of Persons with Disabilities art. 22, Dec. 13, 2006, 2525 U.N.T.S. 3 (providing the right to privacy); The International Covenant on Economic, Social and Cultural rights, Dec. 16, 1966, S. Treaty Doc. No. 95-19, 6 I.L.M 360 (1967), 993 U.N.T.S. 3, art. 17 (providing the right to privacy); Convention for the Protection of Human Rights and Fundamental Freedoms art. 8, Nov. 4, 1950, Europ. T.S. No. 5, 213 U.N.T.S. 221 (providing the right to privacy); Convention on the Rights of the Child art. 16, Nov. 20, 1989, 1577 U.N.T.S. 3 (providing the right to privacy).

[2] See, e.g., Adam D. Thierer, The Internet of Things and Wearable Technology: Addressing Privacy and Security Concerns Without Derailing Innovation, 21 Rich. J.L. & Tech. 6, at 2-3 (2015) (“Privacy and security are important values worthy of attention, but so too are innovation, entrepreneurialism, economic growth, price competition, and consumer choice. Regulation–especially regulation of fast-moving, rapidly evolving technologies–is likely to be premature and overly rigid and is unlikely to allow the many beneficial uses of these technologies.”).

[3] See, e.g., Seema Mohapatra, Use of Facial Recogntion Technology for Medical Purposes:Balancing Privacy With Innovation, 43 Pepp. L. Rev. 1017 (2016) (discussing the benefits of facial recognition in medical practice).

[4] See, e.g., Zoe Kleinman, King’s Cross Developer Defends Use of Facial recognition, BBC (Aug. 12, 2019), https://www.bbc.com/news/technology-49320520 (“In a statement, developer Argent said it used cameras ‘in the interest of public safety’ and likened the area to other public spaces.”).

[5] Caroline Haskins, Amazon Told Police it Has Partnered With 200 Law Enforcement Agencies, Motherboard (July 29, 2019), https://www.vice.com/en_us/article/j5wyjy/amazon-told-police-it-has-partnered-with-200-law-enforcement-agencies.

[6] Alfred NG, Amazon Ring’s Police Surveillance Tieups are Now on This One Map, Cnet (July 18, 2019), https://www.cnet.com/news/this-map-tells-you-where-police-have-partnered-with-amazons-ring/.

[7] Matt McFarland, Amazon may want to Identify Burglars with Facial Recognition Tech, CNN (Nov. 30, 2018), https://www.cnn.com/2018/11/30/tech/amazon-patent-doorbell-facial-recognition/index.html?tag=reviewgeek-20.

[8] See People v. Bass, 2019 IL App (1st) 160640, ¶ 1.

[9] Id. at ¶¶ 46, 47.

[10] See, e.g., Hon. John Christopher Anderson, Can State Constitutional Development Make a Difference in Illinois?, 39 N. Ill. U. L. Rev. 48, 61 (2018) (“In practice, however, instances of Illinois courts departing from lockstep interpretation are highly uncommon; thus, it seems unlikely that Illinois courts will depart from an analogous United States Supreme Court decision when interpreting the Illinois Constitution.”).

[11] See Bass, 2019 IL App (1st) 160640, ¶ 48 (“Even though the federal constitution has no provision expressly protecting privacy or protecting against the interception of communications by eavesdropping [], it does have a provision protecting against unreasonable searches and seizures and requiring a warrant. It is the analogous text in our constitution related to those provisions that we must analyze to determine if a basis exists for a different interpretation under out law.”); see also Hope Clinic for Women, Ltd. v. Flores, 2013 IL 112673, ¶ 42 (citing People v. Caballes, 221 Ill. 2d 282, 289 (2006)) (“The privacy clause is unique to the Illinois Constitution, there being no cognate provision in the federal constitution. Accordingly, we interpret the provision without reference to a federal counterpart.”).

[12] See Larry Hardesty, Study Finds Gender and Skin-Type Bias in Commercial Artificial-Intelligence Systems, MIT (Feb. 11, 2018), https://news.mit.edu/2018/study-finds-gender-skin-type-bias-artificial-intelligence-systems-0212; Sadie Gurman, Across US, Police Officers Abuse Confidential Databases, AP (Sept. 27, 2016), https://apnews.com/699236946e3140659fff8a2362e16f43 (reporting that police officers in America regularly abuse confidential databases to stalk and harass people—a problem that facial recognition will only compound).

[13] Fight for the Future, Ban Facial Recognition, https://www.banfacialrecognition.com/ (last visited Aug. 7, 2019).

[14] Clare Garvie, Garbage In, Garbage Out, Georgetown (May 16, 2019), https://www.flawedfacedata.com/.

[15] Clare Garvie, Alvaro Bedoya, & Jonathan Frankle, The Perpetual Line-Up, Georgetown (Oct. 18, 2016), https://www.perpetuallineup.org/.

[16] Drew Harwell, FBI, ICE Find State Driver’s License Photos are a Gold Mine for Facial-Recognition Searches, Wash. Post (July 7, 2019), https://www.washingtonpost.com/technology/2019/07/07/fbi-ice-find-state-drivers-license-photos-are-gold-mine-facial-recognition-searches/?noredirect=on; see also Sahil Chinoy, Opinion, The Racist History Behind Facial Recognition, N.Y. Times (July 10, 2019), https://www.nytimes.com/2019/07/10/opinion/facial-recognition-race.html (outlining the connections between physiognomy and facial recognition).

[17] Blake Montgomery, Facial Recognition Bans: Coming Soon to a City Near You, Daily Beast (July 31, 2019), https://www.thedailybeast.com/facial-recognition-bans-coming-soon-to-a-city-near-you?ref=scroll.

[18] Id.

[19] Eli Massey, The Chicago Police Tortured People, Current Aff. (May 6, 2019), https://www.currentaffairs.org/2019/05/the-chicago-police-department-tortured-people.

[20] Chicago Tribune, Jon Burge and Chicago’s Legacy of Police Torture, (Sept. 19, 2018), https://www.chicagotribune.com/news/ct-jon-burge-chicago-police-torture-timeline-20180919-htmlstory.html.

[21] Elvia Malagon, 4 Things: The Cost of Jon Burge’s Police Torture Legacy, Chi. Trib. (Sept. 21, 2018), https://www.chicagotribune.com/news/breaking/ct-met-four-things-jon-burge-torture-chicago-police-20180921-story.html.

[22] Jason Meisner, Former Chicago Detective Takes the Fifth more than 200 Times in Wrongful Conviction Trial, Chi. Trib. (June 12, 2018), https://www.chicagotribune.com/news/breaking/ct-met-wrongful-conviction-trial-reynaldo-guevara-20180612-story.html; see also Melissa Segura, A Chicago Cop is Accused of Framing 51 People for Murder. Now, the Fight For Justice, BuzzFeed (Apr. 4, 2017), https://www.buzzfeednews.com/article/melissasegura/detective-guevaras-witnesses (outlining other allegations of framing by Guevara beyond officially overturned verdicts).

[23] Jeremy Gorner & Gregory Pratt, Chicago Police Issue Apology for Running Background Checks on Police Board Speakers, Chi. Trib. (July 25, 2019), https://www.chicagotribune.com/news/criminal-justice/ct-chicago-police-apology-20190724-57t5ymacojdwbcwbwwwyzpspoq-story.html.

[24] Jeremy Gorner & Gregory Pratt, Documents Show Secret Background Checks by Chicago Police go Back to at Least 2006 as Lightfoot calls for Probe, Chi. Trib. (Sept. 12, 2019), https://www.chicagotribune.com/news/criminal-justice/ct-chicago-police-background-checks-20190912-vcvwow7wh5he7ci36wduneokn4-story.html.

[25] Patrick Smith, In Clearing Chicago Police Sergeant, City Cites Gun Recovered 3 Months After Fatal Shooting, WBEZ (July 29, 2019), https://www.wbez.org/shows/wbez-news/in-clearing-chicago-police-sergeant-city-cites-gun-recovered-3-months-after-fatal-shooting/3217507c-07cf-4a74-962f-94ecd3c6e108.

[26] Gaynor Hall & Pam Grimes, Are Surveillance Cameras Making Chicago Safer?, WGN (Feb. 22, 2016), https://wgntv.com/2016/02/22/are-surveillance-cameras-making-chicago-safer/; see also Dahleen Glanton, In a City With Tens of Thousands of Surveillance Cameras, Who’s Watching Whom?, Chi. Trib. (Feb. 26, 2019), https://www.chicagotribune.com/columns/dahleen-glanton/ct-met-dahleen-glanton-video-cameras-chicago-20190225-story.html (“It turns out that Chicago has access to more than 32,000 video cameras that can feed directly to police stations and even into officers’ laptops while they’re sitting in a squad car.”).

[27] Jennifer Helsby, Police Surveillance in Chicago, Lucy Parsons Lab, https://redshiftzero.github.io/policesurveillance/ (last visited Aug. 7, 2019).

[28] Id.

[29] Id.

[30] David Struett, Chicago Cops Could Have Access to Video from Thousands of New Cameras—on Residents’ Front Doors, Sun Times (Sept. 18, 2019), https://chicago.suntimes.com/2019/9/18/20863289/ring-cameras-police-surveillance-privacy-civil-liberties-cpd-doorbell.

[31] Id.

[32] Georgetown, https://www.perpetuallineup.org/jurisdiction/Chicago (last visited Aug. 7, 2019).

[33] Id.

[34] Id.

[35] Compare U.S. Const. amend. IV, with IL Const. art. 1, § 6.

[36] See, e.g., Big Brother Watch and Others v. The United Kingdom, (Judgment), App. Nos. 68762/14 & 71200/14 paras. 469-500 (2018) (holding that the U.K.’s mass surveillance system violates the right to hold and express an opinion and the right to privacy); see also Rep. of the High Comm’r For Human Rights, The Right to Privacy in the Digital Age, para. 20, U.N. Doc. A/HRC/27/37 (2014) (citing Weber v. Germany, (Decision), App. No. 54934/00, Eur. Ct. H.R., para. 78 (2006)) (explaining that, due to the indiscriminate nature of mass surveillance, a mass surveillance program always violates the right to privacy; therefore, the determinative factor is the adequacy of the legal justification for mass surveillance).

[37] See Bass, 2019 IL App (1st) 160640, ¶ 1.

[38] See Carpenter v. United States, 138 S. Ct. 2206 (2017) (holding that police departments must have a warrant to obtain location information from cell phone service providers).

[39] Id. at 2219.

[40] Id. at 2218.

[41] See Bass, 2019 IL App (1st) 160640, ¶ 37.

[42] Id. at ¶

[43] Id. at ¶ 65.

[44] Id. (emphasis in original).

[45] Carpenter, 138 S. Ct. at 2217 (internal quotations omitted).

[46] Struett, supra n. 30.

About the Article: This article has been previously published in Illinois State Bar Associations Human Rights Section September 2019 Newsletter.

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