September 30, 2019

The Rise of Networked Vigilante Surveillance

[Cross-posted from Slate]

By Elizabeth Joh

Neighbors have always been able to spy on you. Watchful eyes behind curtains eventually turned into security cameras on porches. But these forms of self-protection have always been limited to what people can see and identify. But what happens when you fuse startup culture, artificial intelligence, and fearful neighbors? Call it the rise of networked vigilante surveillance. And we’re not prepared for it.

A new venture called Flock Safety is a good example of the problem. The Atlanta-based company sells a particular vision of security: Residents can track every single car that passes through their neighborhood with the help of the company’s automatic license plate readers. As the Los Angeles Times recently reported, a two-year contract entitles you to the cameras, cloud storage for the data, and, most importantly, software that allows quick identification of license plates—completing a task in seconds that would take a person hours or days. (It’s not necessary for a whole neighborhood to agree to adopt the system, as long as some neighbors agree to pay for it.) If a crime happens within the neighborhood, residents can check and see which cars were captured by the cameras in the area at the time. Imagine being able to produce a detailed map of one car’s whereabouts. Residents can send videos to the police, and the police can presumably request data from residents. Although the data is stored on the company’s servers, residents own the data, according to the company’s website.

In this way, suspicious neighbors are just catching up to the police, repo agents, and property managers, who already have access to license plate readers that can capture data at rates of thousands of plates per minute. Flock essentially tells potential customers: If these are useful tools for safety, shouldn’t individuals and communities have them, too? And like many other surveillance products sold to the police and the public, it promotes surveillance as a service with a for-profit motive. The company begin as a 2017 Y Combinator startup and has since raised millions in venture capital funding from Peter Thiel’s Founders Fund, among others. Its website promises to “increase solvability around crime with infrastructure-free [automatic license plate readers] in your community.”

The drive to move fast and sell quickly is especially ill-suited to a product of mass surveillance controlled by your neighbors. Maybe your neighborhood would have a trusted group soliciting input from everyone about how to run its ALPR network before signing up. Or maybe it wouldn’t. Maybe your systems administrator is the most ethical person on the block. Or maybe you grant everyone in the neighborhood access to the footage, as Flock permits. Flock provides a product; it doesn’t provide training in the law or in ethics. Nor would we expect it to—civilians aren’t law enforcement professionals.

But unleashing an automatic license plate reader system to groups of private citizens with a handshake and a contract means these systems are ripe for abuse. Once some residents in your neighborhood can track every license plate, they will face some unsavory temptations. Imagine a neighbor who wants a shot-by-shot map of the whereabouts of a spouse, a neighborhood child, or an unconventional resident. Or someone who wants to count the times your “suspicious” friends have come to visit the neighborhood. While automatic license plate reader cameras are sold as a crime prevention measure, there’s nothing to stop their use as tools of harassment or stalking.

And sometimes the software will be plain wrong. There is little for the wrongly accused people to clear their names. As for Flock? It’s not the company’s problem. As its head of marketing states, using the software inappropriately would be a “breach of contract.” But that is hardly a mechanism for accountability.

These new technologies prey upon familiar fears and hyper-charge them with the power of surveillance.

There seems little to stop those impulses from becoming even worse when social media can amplify some of our worst social traits. Why not collect lists of “suspicious” cars and plates and post them on Facebook or NextDoor? Why not combine these lists with videos from Ring video doorbells? If you’re the lone neighbor who doesn’t want any part of this, you have little choice other than to leave your community altogether. That is, if you even know your neighbors have installed an ALPR system.

The direct marketing of such products to individuals raises perhaps the most worrisome concern: encouraging vigilantism. These extralegal movements, organized to take the law into one’s own hands, have long been with us. Think back to Bernie Goetz in 1980s New York, the North Ward Citizens’ Committee in 1960s Newark, and even further back to the San Francisco Vigilance Committee of 1856. Or just remember the tragic circumstances of Trayvon Martin’s death at the hands of George Zimmerman, who was a neighborhood watch volunteer. Now imagine a community automatic license plate reader network that issues a BOLO (“be on the lookout”) for a particular car. Then what?

Vigilante justice arises when people feel the usual methods of addressing crime are broken or flawed. In his classic 1975 study “Strain of Violence,” historian Richard Maxwell Brown observed that American vigilantism is an indigenous and deeply rooted part of our shared history. We have a lot of experience with private citizens meting out their own versions of justice, and it is largely an ugly one.

These new technologies prey upon familiar fears—that local police ignore or dismiss crimes important to neighbors—and hyper-charge them with the power of surveillance. The potential concerns they raise are similar to the ones we see as law enforcement agencies and private corporations adopt these tools, but with even fewer guardrails. Neighborhoods armed with Ring videos, Flock readers, and NextDoor posts have the power to create networked engines of suspicion, sometimes ill-founded or erroneous, that may embolden residents to take actions they should not.

And even if neighborhoods armed with ALPR do nothing more than watch and post, the harms are significant nonetheless. The erosions of our privacy are coming from the government, corporations, and now our neighbors.

Future Tense is a partnership of Slate, New America, and Arizona State University that examines emerging technologies, public policy, and society.

 

September 23, 2019

'What Trump Can Teach Us About Con Law,' Episode 33: Obstruction

By Elizabeth Joh

Episode 33 of the podcast "What Trump Can Teach Us About Con Law" takes on the topic of obstruction of justice, in regard to the Mueller investigation and Donald Trump, with a dash of the Martha Stewart case thrown in.

Listen here

 

Listen here

September 16, 2019

California shouldn't expand the market for women's eggs

[Cross-posted from the San Francisco Chronicle]

By Lisa Ikemoto and Diane Tober

Medical researchers would be allowed to buy women’s eggs under a bill being considered by the Legislature this week. As pro-choice, feminist scholars, we are deeply troubled by this legislation.

Proponents of AB922, backed by the American Society for Reproductive Medicine and authored by Assemblywoman Autumn Burke, D-Marina Del Rey (Los Angeles County), point out that human eggs, sperm and embryos are in demand for research on fertility, stem cells, cloning and gene editing. They claim the only way to meet the growing demand is to increase supply by paying women for their eggs. California law allows such compensation for fertility purposes, but women donating eggs for research may be reimbursed only for their expenses.

The arguments for the legislation ignore the repercussions for prospective donors. While the bill claims, “Concerns that women will be exploited if compensated for providing human oocytes for research have not borne out” in other states, we can find no support for this statement.

A thriving egg trade depends on recruits in financial need. People who are likely to be screened out of the fertility market, which favors white donors and class markers such as higher education, may well qualify as research donors. That means AB922 will affect a range of low-income women, women of color and gender-non-conforming people with ovaries.

Proponents claim that hormonal stimulation for egg retrieval is safe. Yet there is no conclusive longitudinal data on the health effects of egg harvesting despite reproductive-health advocates’ repeated calls for studies. Without adequate research on the health effects of egg retrieval, informed consent is impossible.

Fresh evidence for the troubled state of egg donation comes from research that one of us (Tober) conducted with over 350 women who provided eggs for fertility purposes. The majority of participants reported that financial need was a primary motivation for their egg donations. Their average age was 24; the youngest were 18. Many were students burdened by educational debt or with incomes below the federal poverty level.

The majority of participants reported being assured that complications from the procedure are “extremely rare” or occur in “less than 1%” of cases. But the number who experienced substantial health effects belies these statements. The complications included hospitalization with severe ovarian hyperstimulation syndrome, ovarian torsion requiring removal of an ovary, surgical mishaps and internal bleeding, pain and bloating requiring at least a week away from work, and hormonal disruptions. Two 24-year-old women in the study suffered critical ovarian hyperstimulation and almost died of organ failure.

Supporters of AB922 say laws protecting human research subjects will cover those who provide eggs. But egg providers aren’t like other research subjects because they’re providing material for research unrelated to their own health. Their reactions to repeated hormone injections and surgical egg retrieval are not what’s being studied.

The law requires institutional review boards to ensure that the benefits of studies outweigh the risks to human subjects. But such boards may not weigh the risks to egg providers as seriously as they do those to typical human research subjects. In addition, risk-benefit analyses vary from institution to institution.

This bill is opposed by a number of state and national reproductive rights, women’s health, LGBTQ rights and public interest organizations. Even with amendments made last week, AB922 emphasizes scientific enterprise while ignoring the humanity of women who provide research materials. We need not sacrifice human safety to advance science.

Lisa Ikemoto is a professor at the UC Davis School of Law. Diane Tober is an assistant adjunct professor at UCSF’s Institute for Health & Aging, Bixby Center for Global Reproductive Health and department of anthropology, history and social medicine.

 

 

September 16, 2019

Some Thoughts on Sept. 11, 2001, and the Role of the Courts in Enforcing the Rule of Law

[Cross-posted from ImmigProfBlog]

By Kevin R. Johnson

Earlier this week, the Milton L. Schwartz/David F. Levi Inn of Court held its first meeting of the academic year at UC Davis School of Law.  Because the meeting was on the anniversary of Sept. 11, 2001, Judge Emily Vasquez asked me to offer some remarks on the impact of September 11 on the law.  Here are my remarks:

September 11, 2001. The words alone bring forth many images and emotions. The morning saw one of those rare events where people look back and think about where they were when they heard the news. It is hard to ever forget the television footage of the jet crashing into the World Trade Center. Closer to home, I will never forget the Sikh owners of the local 7/11 store who plastered American flags on the store windows, basically trying to convince people that they were not Muslim. This simple act spoke volumes about the tension in the air.

For a long while, some said that “9/11 changed everything.” That, I think, is an exaggeration. However, the events did have significant reverberations. Airplane travel became very different — forever. Armed National Guard members immediately were at California airports. Waiting in long lines for screening at airports became common. "Interacting" with TSA officers became a normal part of the airport experience.

The days that followed saw a blur of government responses. I think it fair to say that some people today have regrets about various missteps in the name of security. Some examples might include

1.    The treatment of Arabs and Muslims – many now think that “special registration” of Arab and Muslim men was unnecessary. Similarly, the mass dragnet and detention of young Arab and Muslim men is not generally looked on as one of the nation’s best moments.

2.    The use of Guantánamo and torture have been roundly condemned.

3.    The USA PATRIOT Act and its intrusion on privacy and individual rights has drawn criticism.

On the positive side of the ledger, the nation saw the inspirational rebuilding of the World Trade Center area, with a memorial and museum. The response reflects the resilience of the people of the United States. Who doesn’t like a good comeback story? In the film world, aren’t we on something like Rocky 13?

All that said, September 11 and security concerns remain with us and influence law and policy. But the courts – and this is the upbeat portion of my remarks – have stepped up. Consider the travel bans put into place by President Trump, which applied to noncitizens from a group of countries with predominantly Muslim populations. There actually were three bans, with the first one put into place in January 2018. The bans were rooted in the same fears that influenced the responses to September 11. Some claimed that they were anti-Muslim.

In the first version, it was not clear whether the ban applied to lawful permanent residents or only to temporary visitors to the United States. Nothing less than chaos resulted at airports from coast to coast. I am proud that UC Davis School of Law had students, alumni, and faculty head to airports to help noncitizens seeking admission into the United States. We even had a law professor who happened to be in New York City and went out to John F. Kennedy International Airport to help people in need. I can’t help but think that some of the willingness of people to help persons affected by the travel ban comes from remembering the injustice of some of the U.S. government’s responses to September 11.

The courts played a critically important role in narrowing the three bans, invalidating the first two. We might debate whether the final one was lawful. However, few would say that the final ban’s lawfulness is not a much closer question than the first one. Through judicial review, the courts in effect narrowed the ban.

In Trump v. Hawaii, the Supreme Court upheld the travel ban after engaging in judicial review of its lawfulness. Even though the Court only engaged in rational basis review, that itself is more than once was the case.  In the not-too-distant past, the courts have not even engaged in any review of immigration and national security decisions of the president and Congress. In addition, the Court finally overruled Korematsu v. United States, the case upholding the internment of persons of Japanese ancestry, citizens and noncitizens alike – a national blemish if there ever was one.

This leads me to a more general lesson as we work through challenging times. Time and again in recent years, the nation has seen courts enforcing the rule of law in these and other areas:

  • The rights of “enemy combatants”
  • Sanctuary litigation
  • Immigrant detention
  • Enforcement of the Flores settlement and protecting the rights of migrant children
  • Asylum policies
  • The litigation over the decision to rescind the Deferred Action for Childhood Arrivals (DACA) policy. This issue is currently before the Supreme Court.

The courts enforcing the rule of law include a conservative Supreme Court. Consider Sessions v. Dimaya (2018) in which a 5-4 Court held that a removal provision of the immigration laws was unconstitutional, an extraordinarily rare occurrence. In another case that surprised many Supreme Court watchers, a 5-4 Court in 2019 found that the Trump administration had not adequately explained its addition of a U.S. citizenship question on Census 2020. In my view, Chief Justice Roberts, who wrote for the majority, joined the more liberal justices to save the Court’s legitimacy as an institution separate from the political process.

Ultimately, my firm sense is that we have learned much from September 11. And I remain inspired by the role of the courts in enforcing the rule of law on national security matters. We all should be proud of that.