I’m just an average man
With an average life
I work from nine to five
Hey, hell, I pay the price
All I want is to be left alone
In my average home
But why do I always feel
Like I’m in the twilight zone
And I always feel like
Somebody’s watching me
And I have no privacy
— Rockwell (with Michael Jackson singing backup)
In one of the must read stories of the summer, the Cincinnati Enquirer reported that DeWine’s office has implemented a “facial recognition technology” that compares photographs to the databases of driver’s license photos and police mug shots.
In the past few months, law enforcement has performed about 2,600 searches “using the new database feature, which is designed to analyze a snapshot or, in some cases, security camera image, and identify the person by matching the photo with his or her driver’s license photo or police mug shot.”
If used correctly, this database and software can be a powerful and beneficial tool. Police can use the program to identify crime suspects caught on surveillance cameras. Think of the Boston Bombing case.
But, here is the scary part.
There are no rules in place on how information can be gathered and maintained on a day to day basis.
And the indiscriminate use of this system to track the movements of individuals can violate the Constitutional.
The facial recognition technology taps into public and private security cameras throughout Ohio. Most public buildings and places now have security cameras that record not only what happens inside, but also what happens on the sidewalks outside. The Enquirer reports: “Ohio’s law enforcement officers and civilian employees of police departments – could match any photo of people on the street to photos in the database and gain access to personal information.”
The concern is that this system can be used beyond solving individual crimes.
Problem I: law enforcement can start to develop a database of who attends certain events.
Imagine: Authorities can use the technology to develop a database of everyone who attended the anti-SB5 rallies at the Ohio Statehouse last year.
(Or, if your are a Conservative, imagine that authorities use the technology to develop a database of everyone who attends a Tea Party rally in Fountain Square in Cincinnati?)
This could violate the First Amendment right to freedom of association. The Supreme Court has held that the constitutional right of association protects those who join groups from state scrutiny. Knowing that the government is keeping track of who supports certain causes would almost certainly convince people to not attend or associate with these causes.
Problem II: law enforcement can use the system to track people.
Imagine: Authorities use the technology to develop a “dossier” of the activities of private citizens.
Where a person appears in public on any given occasion is not private. But, looking at patterns of where an individual appears can reveal a significant amount of personal information. For example, if the government knows that a person appears at a regular basis outside a psychiatrist’s office, the government can infer that the person is seeking mental health counseling or treatment. In the recent GPS tracking case, the Supreme Court recognized that this sort of data gather can violate the Fourth Amendment because the whole of one’s movements reveals more than does the sum of its parts.
The reporting by the Enquirer seems to suggest that DeWine’s Office didn’t adequately consider these significant privacy concerns, even though the issues were raised:
Communications between top officials refer to “concern” and “controversy,” citing the sensitivity of privacy issues after news broke of the federal National Security Agency’s secret spying efforts on cell phone calls, e-mails and Internet browsing. “Given recent disclosures about the NSA review of consumer telephone data, this is a time of particular sensitivity to the potential intrusion of governmental snooping into private activities,” said an early-July memo drafted for BCI head [Tom] Stickrath to send to DeWine. “It is important that we emphasize what this technology is and what it is not.”
DeWine’s response to the paper is wholly inadequate and shows that he doesn’t really grasp the significant privacy concerns this program presents: “Should we have talked about it the day it went live?” DeWine said of the facial recognition system. “You could argue that.”
Now, DeWine is suggesting that “an advisory group of judges, prosecutors and law enforcement officers” suggest changes and safeguards – something that probably should have been done before implementation. And, notably, DeWine hasn’t suggested that any privacy advocates be part of the advisory board.
The comments of DeWine’s likely opponent next year, David Pepper, were dead on: “I think people expect more, especially with something this delicate when it’s related to privacy rights.”