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US Agencies Sued Over Secretive Use of Facial Recognition and Other 'Dystopian Surveillance Technology'

"Face and other biometric surveillance technologies," one ACLU expert warns, "can enable undetectable, persistent, and suspicionless surveillance on an unprecedented scale."

The camera is seen on a facial recognition device

U.S. Customs and Border Protection officers use a facial recognition device at Miami International Airport to screen travelers entering the United States on Feb. 27, 2018 in Miami. (Photo: Joe Raedle/Getty Images)

Warning of grave threats to Americans' privacy and demanding transparency in the name of public good, the national ACLU and its Massachusetts chapter filed a federal lawsuit Thursday against the U.S. Department of Justice, the Federal Bureau of Investigation, and the Drug Enforcement Administration in an effort to unveil the agencies' secretive use of facial recognition technology nationwide.

"There can be no accountability if there is no transparency."
—Kade Crockford, ACLU of Massachusetts

"There can be no accountability if there is no transparency," declared Kade Crockford, director of the ACLU of Massachusetts' Technology for Liberty Program. "This dystopian surveillance technology threatens to fundamentally alter our free society into one where we're treated as suspects to be tracked and monitored by the government 24/7."

The lawsuit (pdf), filed under the Freedom of Information Act in the U.S. District Court for the District of Massachusetts, aims "to understand and inform the public about, among other things, how face recognition and other biometric identification technologies are currently being used by the government, and what, if any, safeguards are currently in place to prevent their abuse and protect core constitutional rights."

Pointing out in blog post on the ACLU's website that "face and other biometric surveillance technologies can enable undetectable, persistent, and suspicionless surveillance on an unprecedented scale," Crockford highlighted concerns about the FBI specifically, considering the agency's track record.

"When placed in the hands of the FBI—an unaccountable, deregulated, secretive intelligence agency with an unresolved history of anti-Black racism—there is even more reason for alarm," Crockford wrote. "And when that agency stonewalls our requests for information about how its agents are tracking and monitoring our faces, we should all be concerned."

In January, the ACLU filed a public records request seeking information about the FBI and DEA's "use of facial recognition and other biometric system." However, despite both agencies acknowledging the following month that they had received the request, neither has provided the legal group with any relevant documents—refusals which eventually led to Thursday's lawsuit.

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Some information about the FBI's use of such technology is already publicly known, as The Washington Post reported Thursday:

The FBI allows federal and local investigators to submit a "probe" photo of someone's face and search against a database of more than 30 million criminal mug shots using its Next Generation Identification system, which the bureau calls "the world's largest and most efficient electronic repository of biometric and criminal history information."

More than 640 million facial photos, including from state driver's license databases, are also available for search by an internal FBI unit known as Facial Analysis, Comparison and Evaluation, or FACE, the Government Accountability Office reported in June. That team has logged more than 390,000 facial recognition searches from local, state and federal investigators since 2011.

Crockford, in the blog post, also detailed some of the FBI's recent uses of the technology—and why it's concerning.

"Since at least 2010, the FBI has monitored civil society groups, including racial justice movements, Occupy Wall Street, environmentalists, Palestinian solidarity activists, Abolish ICE protesters, and Cuba and Iran normalization proponents," Crockford noted. "In recent years, the FBI has wasted considerable resources to spy on Black activists, who the agency labeled 'Black Identity Extremists' to justify even more surveillance of the Black Lives Matter movement and other fights for racial justice. The agency has also investigated climate justice activists including 350.org and the Standing Rock water protectors under the banner of protecting national security."

"Because of the FBI's secrecy, little is known about how the agency is supercharging its surveillance activities with face recognition technology," Crockford continued. "This lack of transparency would be frightening enough if the technology worked. But it doesn't: Numerous studies have shown face surveillance technology is prone to significant racial and gender bias."

Crockford concluded that "of course, even in the highly unlikely event that face recognition technology were to become 100 percent accurate, the technology's threat to our privacy rights and civil liberties remains extraordinary."

Given that threat and the absence of federal rules on use of the technology by governments or private entities, muncipalties and states are pursuing local restrictions and bans with the help of privacy advocacy groups including the ACLU.

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