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ACLU: Here’s What Happens When We Allow Facial Recognition Technology in Our Schools

Here’s What Happens When We Allow Facial Recognition Technology in Our Schools
Facial recognition technology — unregulated, prone to error, and poorly understood — is being rapidly rolled out in schools.

The idea of facial recognition technology conjures up scenes from books and films set in dystopian futures in which freedom and liberty have been forfeited in exchange for the illusion of security. From 1984 to Minority Report, these are worlds where everyone is suspect, and no one is safe. 

Today, you don’t need to look to fiction to imagine these consequences. Facial recognition technology — unregulated, prone to error, and poorly understood — is being rapidly rolled out in the institutions where we should place the most trust: our schools. 

In recent weeks, the NYCLU sounded the alarm after the Lockport City School District received $4 million in state funds to purchase facial recognition technology. More recently, RealNetworks announced that it is offering its facial recognition technology to any K-12 school in the country for free, claiming it’ll make schools safer. 

This is a dangerous path that schools should think twice about. 

We will do just about anything to protect our children. Promises of an omnipotent machine correctly identifying and stopping potential perpetrators make facial recognition technology alluring to parents and educators. And from the perspective of cash-strapped school districts, obtaining this technology for free can seem like a no-brainer. 

But facial recognition technology does not make our schools safer. In fact, facial recognition technology is especially prone to sabotage: For 22 cents, you can purchase a pair of cardboard glasses to fool it. 

Millions of students in the United States have invasive security measures imposed on them each day in order to attend school. Metal detectors, drug-sniffing dogs, pat downs and strip searches, and, now, digital scans of their faces. In order to receive an education, many students have no choice but to surrender to these measures. 

But we must engage in a serious conversation about the steep costs of all of this. Out of fear, we are rushing to solutions that have real consequences for kids. Here are five of them: 

1. Loss of Privacy:

Schools should be safe environments for students to learn and play. They should be places where students can test out and practice ideas, interactions, and activities and be supported to make their own (safe) choices. Pervasive monitoring and collection of children’s most sensitive information — including their biometric data — can turn students into perpetual suspects. It exposes every aspect of a child’s life to unfair scrutiny. 

2. False Matches:

ACLU of Northern California tested Amazon’s Rekognition facial recognition system by loading it with photos of members of Congress and letting it run comparisons to arrest photos. The test resulted in 28 false matches, of which nearly 40 percent were of people of color, even though they make up only 20 percent of Congress. For children, whose appearances change rapidly as they grow, the accuracy of this technology is even more questionable. False positives for a student entering school or going about their day can result in traumatic interactions with law enforcement, loss of class time, disciplinary action, and potentially a criminal record. 

3. Discrimination:

It is widely known and well documented that police stop, detain, frisk, and arrest Black and brown people at disproportionate rates. As a result, the databases that facial recognition systems search are overpopulated with people of color. In schools, facial recognition technology will necessarily mean Black and brown students, who are already more likely to be punished for perceived misbehavior, are more commonly misidentified, reinforcing the criminalization of Black and brown people. That will happen even as facial recognition algorithms get better at correctly recognizing people’s faces. As long as our law enforcement systems are poisoned by systemic racism, technology can only serve to amplify it. 

4. Ineffectiveness:

While the current call for increased safety against school shooters has fueled a wave of increased surveillance, this technology does not mitigate the risk. The vast majority of school shooters are first-time offenders and would not be included in any database to prevent them from entering a school. Indeed, perpetrators who are themselves students would easily gain access to school facilities. 

5. Fewer Graduates:

The effects of the school-to-prison pipeline are well-documented. As we have increasingly relied on law enforcement to maintain school discipline, more of our children are exposed to the criminal justice system. Kids who are arrested in school are four times as likely to drop out as their peers. Communities should be looking for ways to keep the criminal justice system out of classrooms, not bring it in-house. 

Are we willing to forfeit our children’s freedom in pursuit of an illusion of security? 

Normalizing mechanisms of surveillance and control catalyzes the criminalization of the school environment and could make school hallways feel more like jails. It facilitates the tracking of everyone’s movements and social interactions and reinforces the school-to-prison pipeline. 

The solution is not improved technology, nor more training, higher resolution imagery, or more sophisticated artificial intelligence systems. Instead, we need to re-imagine what kind of society we want our children to inherit and what our schools must provide in order to create such a society. 

For starters, we must refuse the premise that our children need to be surveilled in order to be protected. We must rethink policing and safety in schools and in our communities at large. The desire to never let anything happen to our children is strong. But we strive to protect them so they can learn, thrive, and grow into strong individuals. 

If they can’t, there is nothing left worth protecting.

Published August 15, 2018 at 11:00AM
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ACLU: Elementary School Kids Don’t Belong in Handcuffs

Elementary School Kids Don’t Belong in Handcuffs
The ACLU is suing Flint police for putting a 7-year-old with disabilities in handcuffs for kicking a cart in school.

Chrystal McCadden thought she had done everything necessary to ensure an appropriate, safe educational environment for Cameron, her 7-year-old son who has attention deficit hyperactivity disorder. In addition to obtaining appropriate professional services for her son, she also worked with the school district in Flint, Michigan, to develop an individualized education plan, or IEP. Over the course of 13 months, she also met repeatedly with the administrators of an after-school program run by the local chamber of commerce to discuss Cameron’s condition, needs, and strategies for addressing his disability-related challenges. 

Nevertheless, on Oct. 12, 2015, when Cameron allegedly ran across bleachers and kicked a supply cart — conduct consistent with his disability — the afterschool program declined to follow protocols specified by the child’s IEP. Instead, a police officer was summoned. The officer encountered a little boy who was just shy of four feet tall and who weighed about 55 pounds. Cameron was immediately seized and placed in handcuffs. 

When the afterschool program got around to calling Ms. McCadden, the fact that her son was in cuffs was mentioned almost in passing. She disregarded it, believing that the handcuffs must have been toys, part of Halloween activities or a game. When she arrived and learned to her horror that what was done to her son was no game, she vigorously demanded the removal of the restraints. She was then even more alarmed to learn that Cameron could not be released because the officer did not have the key. Almost a full hour passed before the child was finally released. 

On behalf of Cameron, the ACLU of Michigan, the ACLU’s Disability Rights Program, and private cooperating attorneys filed a lawsuit against the Flint Police Department and the Flint Chamber of Commerce. The lawsuit asserts claims for Fourth Amendment and disability law violations. 

In addition to requesting that the court declare Cameron’s handcuffing illegal, order that it never happens again, and award compensation to the McCaddens, the lawsuit and a large coalition of local grassroots community organizations demand the total withdrawal of police officers from Flint’s elementary schools. Against a backdrop of a water crisis that has had a demonstrable physical impact on school children throughout the city, members of the community believe money spent on police in elementary schools would be better spent on professionals who are trained and equipped to deal with the problems of Flint’s children. No one is satisfied with handcuffs as a response. 

Unfortunately, Cameron’s experience was not unique. 

Although students with disabilities are only 12 percent of the national public school student population, they account for 75 percent of students subjected to physical restraint in schools. In addition, while African-American students like Cameron are only 19 percent of students with disabilities, they account for 36 percent of students subjected to mechanical restraints like handcuffs. 

More and more, schools in America are turning mundane disciplinary infractions and behaviors that should be addressed through IEPs or a conversation with a counselor into crimes. With the lawsuit, the McCadden family has said enough is enough. No child deserves to have handcuffs slapped on them, especially when their behavior is an expression of their disability. It’s disturbing that these words even need saying.

Published August 3, 2018 at 12:00PM
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ACLU: When a Stop-and-Frisk Became a Stop-and-Grope

When a Stop-and-Frisk Became a Stop-and-Grope
During a pat-down, a DC police officer put his fingers into our client’s anus and grabbed his genitals.

Late one September afternoon in 2017, on an ordinary residential street in a predominantly African-African neighborhood of the nation’s capital, M.B. Cottingham and his friends had gathered to discuss how to celebrate his birthday that evening. Someone popped a bottle of champagne. 

And then everything changed. 

In what D.C. residents (and even a federal appeals court judge) recognize as common practice in the city, police cars rolled up and the officers jumped out to confront this group of African-African men congregating peacefully on the streets of their own neighborhood. Though the officers had no reason for suspicion, they demanded to know if the men had guns. The men all said no. 

One officer approached Mr. Cottingham, a lifelong D.C. resident who works as an ice-cream vendor, selling frozen treats out of a truck. The officer, Sean Lojacono, asked Mr. Cottingham about a bulge in his sock. Mr. Cottingham pulled out a legal amount of marijuana and — having been stopped and frisked countless times by D.C. police since he was 14 and hoping to keep the situation from escalating — volunteered to let the officer frisk him. 

What happened next was shocking both to Mr. Cottingham and the thousands of viewers who would later watch the video of the incident online

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Ranging far beyond what should have been a limited pat-down for weapons, Officer Lojacono jammed his fingers between Mr. Cottingham’s buttocks and grabbed his genitals. Mr. Cottingham physically flinched and verbally protested, making clear that this highly intrusive search was not within the scope of the frisk to which he had consented. Officer Lojacono responded by handcuffing Mr. Cottingham and returning to probe the most sensitive areas of his person — two more excruciating times.

No warrant, probable cause, reasonable suspicion, or consent justified the scope of these probes, which were conducted in broad daylight in public and with no other discernible reason than to humiliate and degrade Mr. Cottingham and to display the officer’s power over him.

“Once he thrust his finger in my bottom, I wanted to turn around and punch him in his face,” Mr. Cottingham said afterwards. “But the thought that kept running across my mind is, they gonna kill you. I thought about teddy bears being up under the tree or becoming a hashtag. I have kids that I have to live for.”

In his three searches of Mr. Cottingham’s anal area, Officer Lojacono didn’t find anything. He didn’t arrest him or anyone else. Instead, as a parting shot, Officer Lojacono taunted Mr. Cottingham and his friends from the loudspeaker on his car as he and his fellow officers drove away.

Depressed, humiliated, and feeling defeated after what he had experienced, Mr. Cottingham turned inward. He didn’t want to go outside. He could barely bring himself to work his ice cream truck. His side-career as a musician that had been taking off, with paid gigs, now fizzled as Mr. Cottingham lost his drive to perform. He hasn’t performed since the search. Meanwhile, Officer Lojacono remains on the D.C. police force.

Last week, we sued Officer Lojacono on Mr. Cottingham’s behalf for the violation of his Fourth Amendment right against unreasonable searches and seizures. We have asked a jury to assess the appropriate amount to compensate him for what he has suffered and continues to endure, but the case is not ultimately about money.

Mr. Cottingham is suing for his dignity. He is asserting his basic humanity. He is standing up for his community, too often disrespected by police and viewed as potential suspects rather than as neighbors, employees, friends, and family members.

Sadly, we know that for every Mr. Cottingham who has his story captured on video and brought to public attention, there are many more here in D.C. and across the country who suffer this kind of abuse at the hands of law enforcement without recourse or redress — including some whose names do become hashtags.

That is why it is so important that Mr. Cottingham came forward, despite the trauma of what he experienced, to assert his rights, to call attention to the practice of stop and frisk and the abuses that follow, and to shine a light on a harsh reality that many communities of color face.

Published July 23, 2018 at 07:00PM
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ACLU: 10 Questions for Brett Kavanaugh

10 Questions for Brett Kavanaugh
The Senate must pose probing questions to Kavanaugh — and to require him to provide meaningful answers, not artful dodges.

This piece originally appeared at The New York Review of Books. As a matter of policy, the ACLU, of which David Cole is the National Legal Director, neither endorses nor opposes Supreme Court nominees.

With his selection of Judge Brett Kavanaugh to fill Justice Anthony Kennedy’s seat on the United States Supreme Court, President Donald Trump has the opportunity to alter the makeup of the Court for generations — and to place it far to the right of the American public. Justice Kennedy, himself a conservative appointed by President Ronald Reagan, proved to have an open mind in his more than 30 years on the bench and, as a result, kept the court within the mainstream of American society.

Kennedy often voted with his conservative colleagues, including in gutting the Voting Rights Act, restricting workers’ access to courts to challenge discrimination on the job, and upholding President Trump’s Muslim travel ban. But Kennedy was also willing to join his more liberal colleagues. His vote was decisive, for example, in recognizing marriage equality, preserving women’s right to have an abortion, upholding affirmative action, banning the death penalty for juveniles, forbidding prayer at public school graduations, affirming the constitutional right of Guantánamo detainees to challenge their detentions, limiting anti-immigrant state laws, and interpreting the Fair Housing Act to ban practices that have a disparate impact on minorities. Because all of these cases were decided by 5–4 votes, their continuing vitality hangs on a single vote, Kavanaugh’s. 

Even if Kavanaugh would not have voted the way Kennedy did on any of these cases, some of these precedents might survive on grounds of stare decisis, the principle requiring the court to adhere, generally, to its past decisions. But the key word here is “generally.” Courts can and do overrule precedent. The Supreme Court did just that this past term, for example, in overruling a 40-year-old decision allowing public sector unions to charge fees to cover the costs of services they are required to provide to all employees. So, while it’s unlikely that all of the cases in which Kennedy cast a decisive vote in a liberal direction will be overturned, any number of them could be. And the court can substantially weaken a right without formally overruling it, as indeed it already has done with the right to abortion established by Roe v. Wade.

In light of that fact, and that Trump expressly vowed as a candidate to appoint justices who would overrule Roe v. Wade, it is incumbent upon the Senate to pose probing questions to Kavanaugh — and to require him to provide meaningful answers, not artful dodges. Nominees all too often avoid answering questions about their views by simply describing existing Supreme Court doctrine and then insisting they cannot say how they would vote on any particular matter that might come before them. But in speeches and writings while a judge, Kavanaugh has repeatedly expressed his own views on many matters that might come before him, including whether presidents should be subject to civil and criminal lawsuits. If he could express his views there, he should not be permitted to avoid expressing them on other topics in the Senate confirmation hearing.

Here, then, are 10 questions I suggest the senators ask Kavanaugh. These questions avoid asking about any specific case and seek the nominee’s own views, not a description of Supreme Court law. Senators will have to be insistent about getting responses, however, if the hearings are to have any value.

1. Are you committed to interpreting the Constitution as it was understood at the time it was written, or do you agree that its meaning evolves over time through Supreme Court interpretations?

This is perhaps the single most important question for Kavanaugh. Over its history, virtually all Supreme Court justices have interpreted the Constitution as evolving over time. If it did not, segregation would still be constitutional, sex discrimination would not be barred by the Equal Protection Clause, the First Amendment would not protect speech that erroneously attacks the character of public officials, and the Constitution would not protect marriage equality, abortion, or contraception. A small number of conservative justices have over the course of history argued that the Constitution must be interpreted exclusively in an “originalist” fashion, to protect only what it was understood to protect at the time it was adopted. Justice Antonin Scalia was the most outspoken proponent of this view, but Justices Clarence Thomas and Neil Gorsuch also generally adhere to it. Another conservative vote for this backward-looking method of understanding constitutional rights would jeopardize many of the advances that we hold most dear. Does Kavanaugh agree the Constitution as understood today reflects our values, as developed over time, not merely those of the founding generation?

2. Do you believe the Constitution’s guarantee of individual liberty protects the right to make personal decisions regarding one’s own body and intimate relationships, including whom one chooses to marry, how to raise one’s children, whether to use contraception, and whether to obtain an abortion?

Some of the Constitution’s most important rights stem from the Fifth and 14th Amendment provisions prohibiting the government from taking life, liberty, or property without due process. Those provisions have been interpreted for nearly a hundred years as protecting certain crucial liberties and, over time, they have come to include the rights to choose how to educate one’s child, to live with one’s family, to use contraception, and to obtain an abortion. They also protect the rights of adults to engage in consensual sexual relations of their choice and of gay and lesbian and interracial couples to marry on equal terms as straight and same-race couples. Some conservatives, however, don’t believe the court is authorized to interpret liberty to protect these kinds of rights.

Kavanaugh has not ruled directly on the validity of Roe v. Wade or indeed on any of the other issues detailed above. But in a case involving an immigrant minor in U.S. custody, he overturned a court order requiring the government to allow her to obtain an abortion, and he would have required her to delay her abortion for at least 11 days, and very likely longer — had not the full court of appeals reversed Kavanaugh’s decision. In addition, at confirmation hearings for his current position as a federal court of appeals judge, he pointedly refused to say whether he thought Roe v. Wade was correctly decided. And, more recently, he publicly praised Chief Justice William Rehnquist’s dissent in Roe.

Given Kavanaugh’s record and Trump’s promise, senators must demand a substantive answer about Kavanaugh’s own view. If he will not acknowledge this right, so central to American’s lives, then, like Robert Bork before him, he would very likely be unwilling even to recognize a right of contraception — a view that the Senate considered so far outside the mainstream as to warrant rejecting Judge Bork’s confirmation in 1987.

3. Do you agree that, as Justice Kennedy has written for the court, “[t]he ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives”? What impact should that have on the constitutionality of laws restricting abortion?

Access to contraception and abortion are central to the struggle for women’s equality. A recent study finds that being denied an abortion results in increased household poverty and dependence on public assistance and reduced employment. A judge who declines even to acknowledge these facts would blind himself to the consequences of his decision for the status of women in our society.

4. You have defended a robust conception of executive power. Recently, the Supreme Court said that its decision upholding the internment of Japanese Americans on the basis of race and national origin was wrong. Can you name other historical examples where you believe presidents acted unconstitutionally in the name of national security? Should the courts have rejected presidential assertions of national security in those cases, and on what basis?

National security has been invoked by presidents to justify detaining and deporting communists, interning Japanese-Americans, torturing suspects, wiretapping innocent Americans, and barring travelers from predominantly Muslim countries from entering the country — the last of which was intended to deliver on Trump’s campaign promise to ban Muslims. If courts do not enforce constitutional and legislative limits on the executive branch’s broad invocations of national security, the president will have a blank check to violate fundamental individual rights.

5. In your 2006 confirmation hearings for a federal court judgeship, you said that you “absolutely” believed President Bush’s statements that the United States does not torture and does not condone torture. Knowing what you know now about the United States’s use of waterboarding and other coercive methods against detainees, do you still believe that the United States did not torture?

Kavanaugh worked for President Bush in the immediate aftermath of the terrorist attacks of September 11, when President Bush authorized actions that are widely acknowledged here and abroad to be gross violations of human rights, including torture by waterboarding. A Supreme Court nominee who does not acknowledge that waterboarding is torture would raise serious concerns about his willingness to put his obligation to law above his personal or political ties.

6. Do you believe that public colleges and universities have a compelling interest in ensuring that they have diverse student bodies?

The Supreme Court has held for decades that race-based affirmative action is permissible to further a compelling interest in maintaining diverse student bodies, as long as race is considered as one factor among others in a holistic assessment of applicants. But as noted above, Justice Kennedy provided the crucial fifth vote in the court’s most recent decision upholding the practice. If Kavanaugh is unwilling to recognize the long-established principle that diversity is a compelling interest, he may provide the fifth vote to end affirmative action.

7. Does the free exercise of religion clause give individuals a constitutional right to engage in conduct that harms others, or does one person’s free exercise end at the point that it inflicts harm on others?

Opponents of certain constitutional rights, including the right to abortion and to marriage equality, have begun cloaking actions that violate these rights in the exercise of religion. A bakery, supported by the Trump administration, argued in the Supreme Court this term that the owner’s religious beliefs permitted the store to discriminate on the basis of sexual orientation by refusing service to a gay couple seeking to buy a wedding cake. The Supreme Court declined to hold that the free exercise of religion allows individuals to invoke religion as a justification for inflicting harm on others. On the contrary, it insisted that the “general rule” is that religious objections do not allow businesses to violate generally applicable nondiscrimination laws. (The court ruled for the baker, but only on the ground that the process that adjudicated his case was infected by religious bias). If Kavanaugh is unwilling to recognize religious freedom stops where it inflicts harm on others, he could abet a campaign to undermine the civil rights of everyone — not just same-sex couples — in the name of religion.

8. Do you agree that a core function of the Supreme Court in our democratic society is to protect the rights of minorities that cannot protect themselves in the political process? Does that principle justify the court’s precedents protecting LGBT individuals?

The Supreme Court has had an important part in protecting the rights of those who lack the political power to have their rights protected through the democratic process. Minority groups and dissidents will by definition be disadvantaged in a majoritarian political system. That is why the court looks with such skeptical scrutiny on laws that target racial minorities or unpopular speakers. On similar grounds, there are strong arguments for recognizing that government discrimination against LGBT individuals should be viewed with heightened scrutiny by the courts, as is discrimination on the basis of sex, religion, and race. Kavanaugh’s views could determine whether LGBT individuals will be entitled to equal dignity and treatment under the Constitution.

9. Do you agree that US courts may consider international law in interpreting US laws and, in particular, that US courts may consider whether US laws comport with international law?

Kavanaugh has written that federal courts should not look to international law when reviewing statutes or executive branch actions, even in contexts squarely governed by international law, such as the laws of war. This view is contrary to centuries-old doctrine dating back to Murray v. The Schooner Charming Betsy (1804), which held that “an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains.”

Justice Kennedy, by contrast, frequently looked to international law sources in his decisions, such as when striking down the death penalty and life-without-parole sentences for juveniles as unconstitutional, and in ruling that sodomy laws making gay sex a crime violate due process. In Graham v. Florida (2010), which invalidated life-without-parole sentences for juveniles who commit non-homicide offenses, Kennedy explained that:

The Court has treated the laws and practices of other nations and international agreements as relevant to the Eighth Amendment not because those norms are binding or controlling, but because the judgment of the world’s nations that a particular sentencing practice is inconsistent with basic principles of decency demonstrates that the Court’s rationale has respected reasoning to support it.

Kavanaugh should be asked whether he believes it appropriate to look to international law when interpreting statutes concerning matters that international law addresses and constitutional provisions such as the Eighth Amendment’s prohibition on cruel and unusual punishment or the 14th Amendment’s due process clause.

10. President Trump has nominated you to the career opportunity of your lifetime. If presented with a case involving his personal interests, what standard will you use in deciding whether to recuse yourself from the case?

The Supreme Court could well decide any number of issues arising out of the Robert Mueller inquiry, which is investigating the president’s alleged obstruction of justice. While working for Independent Counsel Kenneth Starr’s investigation of Bill Clinton, Kavanaugh wrote the section of the Starr report that justified impeaching Clinton for, among other things, lying and obstructing justice. In 2009, however, he wrote an article arguing that presidents ought not to be subject to civil lawsuits, criminal indictments, or even criminal investigations while in office. If any of those issues reach the Supreme Court, will Kavanaugh, appointed by Trump, be able to serve, or will he recuse himself in light of having directly benefitted so substantially from President Trump’s selection?

Published July 19, 2018 at 10:30AM
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ACLU: A Pro-Liberty Case for Gun Restrictions

A Pro-Liberty Case for Gun Restrictions
Gun rights advocates need to contend with the unintended consequences of expansive gun rights: a more intrusive government.

In recent months, the nation has been debating gun control issues with renewed intensity. One of the principal arguments that firearms advocates advance against restrictions on guns is freedom: Americans ought to be free to own guns, and free to defend ourselves, and that broad ownership of guns by citizens is a check against the possibility of oppression by our own government.

My colleague Louise Melling has laid out the ACLU’s views on guns here — that while gun regulations must be unbiased and subject to due process protections, the Constitution does permit limits on firearms sale and ownership. Overall, the ACLU does not generally engage in either side of the gun control issue. But we do care about freedom, and I have noticed a growing trend: the wide availability of guns and their misuse leading to restrictions on Americans’ freedom. Advocates for expansive gun rights who are serious in their concern over expanded government powers might consider how this is the case.

Mass shootings create a pervasive sense of insecurity and anxiety that politicians and policymakers will inevitably seek to address. Throughout history, people who live in warlike times and places have built walls, while residents of peaceful kingdoms have tended to live without them. When particular security threats arise (real or perceived), societies respond — through policy, behavior, and architecture. Like calluses responding to friction, government power builds up where threats are perceived. If Americans continue to increasingly think of each of their fellow citizens, including children, as a potentially mortal threat at every public gathering, this fear will inevitably lead to more and more government reach into American life.

Intrusions already in play or proposed as a result of mass shootings include:

  • Increased physical searches, including ever-expanding checkpoints, bag searches, magnetometers, body scanners, pat downs, and more. Call it the “airportization of American life.” To pick one telling example: After the Parkland shooting, students at Marjory Stoneman Douglas High School were barred from carrying backpacks, except those that are clear and permit the contents inside to be seen. This decision by the school cost students the fundamental personal privacy of being able to carry books, medicines, and other intimate items without exposing them to public view.
  • More surveillance. We have seen at least two school districts in the United States — in Arkansas and the state of New York — vote to adopt comprehensive surveillance systems that include blanket video surveillance, tracking, face recognition, and the ability of law enforcement to tap into the system. The pressure to install such systems, inside our schools and out, will only increase if mass shootings continue to happen regularly. 
  • A growth in databases, watch lists, investigations, and background checks that set the government rummaging around in our personal lives.
  • More armed police and guards at more and more civilian gatherings, potentially down to every Little League game and church picnic — authorities whose very presence will change the character of American life, and who are also likely to assert their power in numerous ways, make everything into a law enforcement issue, and generally bring the government into a lot of situations in American life where the government has not traditionally meddled. Security experts know that if you harden some targets, attackers just go for the softer ones.
  • More police shootings. There are a lot of problems behind our nation’s tragically high rate of unnecessary police shootings, including racism, poor training, and the militarization of our police. But it is also undoubtedly the case that the widespread availability of guns makes police much jumpier than they otherwise would be and quicker to shoot.

Let’s examine one of the implications of this trend a little more in-depth: law enforcement investigations of “suspicious” individuals.” After the Parkland attacks, there was a discussion about the FBI’s failure to detect shooter Nikolas Cruz ahead of time. Some of the people around Cruz were alarmed by signs that he might do something violent, and they called in tips to the agency, which did not investigate.

It may be that the FBI was incompetent here, and we do often see law enforcement failing to respond sufficiently to some threats, such as domestic violence. But it’s also possible that the tips the agency received were the kind of thing that agents hear all the time, and that there were understandable reasons the agents did not spring into action. But either way, the implication of expecting the government to detect and prevent every mass shooting is believing the government should play an enormously intrusive role in American life.

Remember that if the FBI interviewed Cruz but lacked strong evidence he had committed a crime or posed a threat to himself or others, there would not have been much agents could have done after interviewing him — unless gun advocates are suggesting we allow the government to arrest and imprison people on hunches and worries alone. More fundamentally, as I have explained at length elsewhere, there is a deceptively enticing logic when we look backward at a terrorist attack. “Wow,” people naturally think, “look at all the signals the attacker gave off that should have been detected! If we just monitor everybody for those signs we can stop the next attack!” The problem is that such signs are always vastly more common than actual attacks. There is an “asymmetry between past and future” that makes it very hard to predict terrorist attacks looking forward, even though they may be relatively easy to understand looking backward.

Obviously, people have and should continue to call the authorities when they see genuinely suspicious behavior, and the authorities can and should investigate such behavior. The problem is that as shootings continue, such investigations are likely to become routinized, over-used, and turned into unjustifiably intrusive government monitoring of individuals’ lives.

Greg Abbott, the governor of Texas, for example, reacted to the May mass school shooting in Santa Fe by calling for the state’s intelligence fusion centers to engage in automated monitoring of residents’ social media accounts to try to detect incipient attacks. Mass monitoring of Americans’ public social media conversations is the digital equivalent of putting a secret policeman in every coffee shop to listen in on public conversations and report suspicions to the authorities. That is a deeply un-American approach to law enforcement that is highly unlikely to be effective and, at the same time, highly likely to significantly chill our free-wheeling public life.

Gov. Abbott also encouraged state residents to install an app on their phones for reporting tips of suspicious behavior — just the kind of thing that is likely to push people into over-reporting non-conforming behavior to the authorities. Every high school and community in America has people who are alienated and angry or are seen as such by those around them. I worry that if mass shooting events continue, the threshold for suspicion will become much lower and that ever-greater numbers of people will be reported based on ever-slighter suspicions, and based on biases of various kinds, and we’re going to have a lot more law enforcement officers intruding into our lives a lot more based on a lot less. After Parkland, there was a wave of reporting to police of behavior that people found suspicious in those around them.

As we as a society consider the issue of gun violence, these implications for American freedom also need to become part of the conversation. In particular, those who support expansive gun rights as a protection against excessive government power should strongly consider how much government intrusion and expanded power they’re willing to trade for those rights.

Published July 17, 2018 at 02:30PM
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