I previously explained at https://www.paulksicinskilaw.com/blog/courts-say-you-are-not-secure-in-your-vehicle-from-the-police how courts have no longer made us secure because we travel in a vehicle. But in a airport it gets worse.
Now, the New York Times has wrote that over 600 law enforcement agencies in the US and Canada have signed up in the past year to use software from little-known startup Clearview AI that can match uploaded photos (even those with imperfect angles) against over three billion images reportedly scraped from the web, including Facebook and YouTube. Clearview AI, https://clearview.ai/, says it has “the largest known database of 3+ billion facial images sourced from public-only web sources, including news media, mugshot websites, public social media, and many other open sources.” They gladly serve up these images to your local cop shop.
Our government has a history of targeting people who it does not like exercising their First Amendment rights to assemble and protest. In NAACP v Alabama 357 US 449 (1958) the Supreme Court explained that effective advocacy of both public and private points of view, particularly controversial ones, was undeniably enhanced by group association, and further noting that it had more than once previously recognized the close nexus between the freedoms of speech and assembly, said that it was beyond debate that freedom to engage in association for the advancement of beliefs and ideas was an inseparable aspect of the "liberty" assured by the due process clause of the Fourteenth Amendment, which embraced freedom of speech, and that it was immaterial whether the beliefs sought to be advanced by an association pertained to political, economic, religious, or cultural matters. It is now beyond dispute, said the court, in Bates v Little Rock 361 US 516 (1960), that freedom of association for the purpose of advancing ideas and airing grievances is protected by the due process clause of the Fourteenth Amendment from invasion by the states, and this freedom is protected not only against heavy-handed frontal attack, but is also protected from being stifled by more subtle governmental interference.
Nevertheless, the government has passed laws to curtail the people’s right of advancing ideas and airing grievances, particularly controversial ones. Justice Department investigates protest leaders, funding in Portland and other cities, https://www.usatoday.com/story/news/politics/2020/09/01/justice-department-investigating-blm-protest-leaders-funding/3454937001/ The Alien and Sedition Acts of 1798 in preparation for war with France in order to silence dissent. The Espionage Act of 1917 and the Sedition Act of 1918 were enacted to restrict speech critical of the government or war. Following the terrorist attacks of Sep. 11, 2001, the U.S. Secret Service expanded the use of "free speech zones" during the President's appearances. These zones (at least 500 feet from the President) are often enclosed behind fences and cordoned off to such a degree that they substantially limit the protestors' ability to express their free speech. Violations are often met with trespassing, disorderly conduct, disturbing the peace, or similar charges. Recently, as the nation reacted to the guilty verdict a jury handed to Derek Chauvin in the killing of George Floyd, Republican-led states are introducing punitive new measures governing protests. G.O.P. Bills Target Protesters (and Absolve Motorists Who Hit Them), https://www.nytimes.com/2021/04/21/us/politics/republican-anti-protest-laws.html
Now, whether your face appears on Facebook or Youtube, at a protest or just in the airport, the image of your face is being saved on some computer ready to be used by the government. For instance, protests on the day of President Trump's inauguration were mostly peaceful, but over 230 people were arrested. Washington, DC police asked Facebook for user account information as part of their investigations. And in at least one case, Facebook warned one of the targets -- file a challenge to the data request or the company might have to comply within 10 days. Inauguration Protesters Targeted for Facebook Searches, https://www.bloomberg.com/news/articles/2017-02-03/facebook-emails-inauguration-protester-over-data-hunt
The ACLU has explained “[o]ver the past few years, CBP and the TSA have dramatically expanded their use of facial recognition technology at the airport and other U.S. ports of entry. As of June 2019, CBP had scanned the faces of more than 20 million travelers entering and exiting the country. Several major airlines, including Delta, JetBlue, and United Airlines, have already partnered with CBP to build this surveillance infrastructure, and more than 20 other airlines and airports have committed to using CBP’s face-matching technology. The TSA has also partnered with CBP on face surveillance initiatives, with plans to further expand face surveillance to domestic travelers.” The Government Has a Secret Plan to Track Everyone’s Faces at Airports. We’re Suing, https://www.aclu.org/news/privacy-technology/the-government-has-a-secret-plan-to-track-everyones-faces-at-airports-were-suing/. As the ACLU points out, if the use of facial recognition is normalized at the airport, the government could theoretically argue for its use elsewhere.
There are plenty of technical problems with using facial recognition software. “The software is only about 75 percent accurate, and hasn't been tested by outsiders like the US government's National Institute of Standards and Technology. There's a real risk of false matches, not to mention potential gender and racial biases. However well it has worked in some instances, there's a chance it could lead to false accusations or disproportionately target non-white groups. Cities like San Francisco have rushed to ban government use of facial recognition over problems like these, and calls for further bans might grow louder in the wake of this latest news.” Law enforcement is using a facial recognition app with huge privacy issues, https://www.engadget.com/2020-01-18-law-enforcement-using-clearwater-ai-facial-recognition.html