Tag Archive for: Amendment

Clearview’s Faceprinting is Not Sheltered from Biometric Privacy Litigation by the First Amendment

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Clearview AI extracts faceprints from billions of people, without their consent, and uses these faceprints to offer a service to law enforcement agencies seeking to identify suspects in photos. Following an exposé by the New York Times this past January, Clearview faces more than ten lawsuits, including one brought by the ACLU, alleging the company’s faceprinting violates the Illinois Biometric Information Privacy Act (BIPA). That watershed law requires opt-in consent before a company collects a person’s biometrics. Clearview moved to dismiss, arguing that the First Amendment bars this BIPA claim.

EFF just filed an amicus brief in this case, arguing that applying BIPA to Clearview’s faceprinting does not offend the First Amendment. Following a short summary, this post walks through our arguments in detail. 

Above all, EFF agrees with the ACLU that Clearview should be held accountable for invading the biometric privacy of the millions of individuals whose faceprints it extracted without consent. EFF has a longstanding commitment to protecting both speech and privacy at the digital frontier, and the case brings these values into tension. But our brief explains that well-settled constitutional principles resolve this tension.

Faceprinting raises some First Amendment interests, because it is collection and creation of information for purposes of later expressing information. However, as practiced by Clearview, this faceprinting does not enjoy the highest level of First Amendment protection, because it does not concern speech on a public matter, and the company’s interests are solely economic. Under the correct First Amendment test, Clearview may not ignore BIPA, because there is a close fit between BIPA’s goals (protecting privacy, speech, and information security) and its means (requiring opt-in consent).

Clearview’s faceprinting enjoys some protection

The First Amendment protects not just free expression, but also the necessary predicates that enable expression, including the collection and creation of information. For example, the U.S. Supreme Court has ruled that the First Amendment applies to reading books in libraries, gathering news inside courtrooms, creating…

Source…

DOJ Seizes Domains, Claiming They Pushed Iranian Disinformation; Should Raise 1st Amendment Concerns

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For about a decade now we’ve been questioning why the government is allowed to seize domains over claims of illegal behavior happening on a website. It seems to us that seizing a website is the equivalent of seizing a printing press or books — both of which would be deemed clear 1st Amendment violations. Unfortunately, even when those seizures have proven to be for made up reasons, no one has been able to challenge the underlying ability of the government to seize domains. And now it seems to happen all the time. And even if you believe the websites in question are doing something bad, seizing the websites is problematic.

The latest such case is the Justice Department announcing that it had seized a bunch of domains pushing disinformation on behalf of Iran’s Islamic Revolutionary Guard Corps.

The United States has seized 92 domain names that were unlawfully used by Iran’s Islamic Revolutionary Guard Corps (IRGC) to engage in a global disinformation campaign, announced the Department of Justice.

According to the seizure documents, four of the domains purported to be genuine news outlets but were actually controlled by the IRGC and targeted the United States for the spread of Iranian propaganda to influence United States domestic and foreign policy in violation of the Foreign Agents Registration Act (FARA), and the remainder spread Iranian propaganda to other parts of the world. In addition, the seizure documents describe how all 92 domains were being used in violation of U.S. sanctions targeting both the Government of Iran and the IRGC.

According to reporter Kevin Collier, who used the Wayback Machine to check out some of these sites, they seemed like mostly junk with little US social media presence.

Even so, and even if we’re concerned about foreign disinformation campaigns targeting the US, it still makes me nervous when the US government feels that it can just go in and seize entire domains. It strikes me as the thing that can create blowback as well. The US has certainly been involved in foreign propaganda as well — and would we want foreign governments seizing the assets of, say, Voice of America?

Techdirt.

Fourth Circuit Appeals Court Seems Skeptical That Baltimore’s Aerial Surveillance System Violates The Fourth Amendment

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The legal fight over Baltimore’s aerial surveillance system continues. Airplanes armed with powerful cameras fly constantly over the city, allowing law enforcement to view the movements of people and vehicles over a 32-square mile area. The resolution may be high (192 million megapixels) but the area covered reduces people to (nearly) unidentifiable dots on a screen. However, these recordings can be accessed to trace movements of pixels/people as they move to and from suspected crime scenes.

The city isn’t paying a dime for these cameras and airplanes. The equipment — provided by Persistent Surveillance Systems — is paid for by a private donor. This perhaps explains why the city chose to roll it out with zero public notice back in 2016. After a brief shutdown, it has resumed, with a bit more public involvement. It may be audacious, but it hasn’t been all that successful. Reports show the program logged 700 flights but only one arrest.

The ACLU sued, claiming this persistent surveillance of nearly everyone in the city violated the Fourth Amendment. The federal court disagreed, even taking into consideration the ability of the program to engage in persistent tracking of individuals when combined with the PD’s cameras on the ground. Despite the word “persistent” being used by the company itself, the program is far from persistent, with darkness preventing recording and inclement weather occasionally grounding spy planes.

There’s an appeal underway, but as Louis Krass reports for Baltimore Brew, the ACLU doesn’t appear to have found much more sympathy one level up. The ACLU argued the untargeted surveillance system is an unreasonable search. In other words, Baltimore residents would not consider it reasonable to have their public movements surveilled for up to 12 hours a day for six months straight.

Judge J. Harvie Wilkinson disagrees.

“Whose constitutional rights is this violating?” Wilkinson, a Reagan appointee, asked.

“These are simple observations of public movements, and it’s not inside someone’s dwelling, it’s public streets, where someone’s expectancy of privacy is minimal,” he said. “We’re not talking about excessive police force, so is it the right of the pixel whose rights are being violated?”

The judge is right that the expectation of privacy is lower in public areas. But this is too reductive. A pixel isn’t just a pixel — incapable of having its rights violated. It’s a person, even if that person can’t be clearly identified using these recordings alone. The entire purpose of the aerial surveillance system is to help police identify criminal suspects. And police do this by cross-referencing this footage with surveillance equipment on the ground, which is completely capable of turning a “pixel” into a person.

But Wilkinson isn’t the only judge being asked to rule on this. Judge Roger Gregory is far more critical of the government’s arguments. The government said there were no Constitutional concerns in tracking the movements of millions of Baltimore “pixels” since the PD was only interested in the “pixels” who may have been near a crime scene. Most of the recordings collected are never used by the Baltimore PD’s analysts.

That doesn’t make it okay, says Judge Gregory.

Gregory, a Clinton appointee, countered that it is unconstitutional to gather such information in the first place.

“That would turn the Fourth Amendment on its head,” he said. “That’s like invading someone’s home with a camera and taking a photograph of you, then say, ‘It’s no problem because we never developed the film.’”

It seems unlikely the Appeals Court will be any more impressed with the ACLU’s arguments. As long as people are still rendered as pixels — and planes incapable of capturing footage 24 hours a day — there appears to be very little violation of privacy. If there’s no sympathy for the mosaic theory of the Fourth Amendment — where multiple Constitutional surveillance techniques combine to form an unconstitutional invasion of privacy — Baltimore residents will still be watched by multiple eyes in the sky.

Techdirt.

Another Federal Court Says Chalking Tires Is A Violation Of The Fourth Amendment

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In one of the more surprising Fourth Amendment decisions ever handed down, the Sixth Circuit Court of Appeals ruled “chalking” tires for parking enforcement was a search and, as such, violated the Constitution. The ruling, handed down last spring, sided with the plaintiff. It found that the use of chalk to mark tires for parking enforcement was an investigative act. The intrusion onto citizens’ private property — their cars — for investigative reasons (rather than the community caretaking function the government claimed) was impermissible without a warrant, even if the cars were parked on public streets.

The City does not demonstrate, in law or logic, that the need to deter drivers from exceeding the time permitted for parking—before they have even done so—is sufficient to justify a warrantless search under the community caretaker rationale. This is not to say that this exception can never apply to the warrantless search of a lawfully parked vehicle. Nor does our holding suggest that no other exceptions to the warrant requirement might apply in this case. However, on these facts and on the arguments the City proffers, the City fails to meet its burden in establishing an exception to the warrant requirement.

As is stated above, the Appeals Court didn’t say the city wouldn’t ultimately prevail, but that it couldn’t prevail on the arguments made in this case. A trespass is a trespass, even if it’s only with a piece of chalk. Parking enforcement officers use chalk to determine whether criminal infractions have occurred. That’s an investigation, not caretaking. And the case returned to the lower court for a second pass with the Appeals Court’s jurisprudence in mind.

This case, via Orin Kerr, is similar. But it originates in the Ninth Circuit. Nevertheless, the judge in this case applies the Sixth Circuit’s ruling to the facts to find that chalking tires is a search under the Fourth Amendment. Taking into account this ruling — along with the Supreme Court’s ruling on the warrantless attachment of GPS trackers to people’s cars — the California federal court says this trespass violates Constitutional rights, no matter how minimal the trespass. From the decision [PDF]:

Considering Jones, a technical trespass occurs when there is unauthorized physical intrusion. Jones, 565 U.S. at 420 (Sotomayor, J., concurring). Although Jones does not outline the boundaries of how intrusive this unauthorized physical intrusion must be to be considered a trespass, the Supreme Court found that the physical contact of a GPS beeper to the undercarriage of a car was sufficient, even though the actual contact of the beeper did not cause any damage to the defendant’s effect.

Here, considering whether the Defendants’ conduct was trespassory, the Court finds Plaintiffs have pled sufficient facts to establish their claim. Defendants physically placed chalk marks on the tires of vehicles. Although this contact does not cause outward damage to Plaintiffs’ property, it is a technical trespass nonetheless.

Moreover, constitutionally protected areas include persons’ papers, houses, and effects. U.S. Const. amend. IV. This case involves constitutionally protected personal property – personal vehicles – belonging to the Plaintiffs. Once a technical trespass has been established, it must also be shown that the trespass is conjoined with an attempt to obtain information.

This is a fairly evident point established both in Jones and here. In Jones, the police used the installed beeper to track the defendant for investigatory purposes. Here, the police chalked Plaintiffs’ tires to obtain information as to whether Plaintiffs violated the parking limitations in order to issue a citation.

Chalking could still be permitted if the search is reasonable or supported by an exception to the Fourth Amendment. Community caretaking doesn’t work, even if the court says chalking isn’t necessarily always investigatory.

Although tire chalking is arguably divorced from investigation, it is unclear whether there is a public safety risk to justify the Defendants’ actions. Defendants have merely offered that it applies to address the “immediate need for safety in the City’s rights of way.” Accordingly, the Court finds Defendants are not entitled to dismissal under the community caretaking doctrine at this juncture.  

Neither does the “special needs” exception. While “maintaining order in the public ways” is in the public interest, the method of doing this involves an unjustified trespass that exceeds what’s needed to accomplish this goal. The privacy expectations inherent in people’s cars outweighs the government’s needs under this exception.

There is also no “implied license” exercised in the act of parking on a public street… at least not when it comes to allowing literally unwarranted trespasses by the government.

It is possible that law enforcement has an implied license to touch a vehicle in the same manner, and for the same purpose, as a private citizen distributing advertisements, but does not have an implied license to make contact for the purpose of investigating whether a violation of law has occurred. Defendants’ position seemingly ignores the purpose behind the two types of action: one is innocuous while the other is investigatory. On its face, the practice of chalking tires seems more investigatory than innocuous…

Like the Sixth Circuit, the California court doesn’t say there’s no way the government will be able to talk it into continuing to mark tires without a warrant. But it’s not willing to dismiss the lawsuit at this point. For now, chalking tires in this federal district is an invitation to be sued.

Techdirt.