Speech may not be censored solely because some find it offensive.  Justice Samuel Alito, joined by Chief Justice John G. Roberts Jr., Justice Clarence Thomas and Justice Stephen G. Breyer, in which Justice Gorsuch did not participate, declared that there is no offensive or hate speech exception to the First Amendment:

[The idea that the government may restrict] speech expressing ideas that offend … strikes at the heart of the First Amendment. Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate.”  Matal v. Tam, 582 U.S. ___ (2017) (provisions of the Lanham Act's prohibiting the registration of trademarks that may "disparage" persons, institutions, beliefs, or national symbols violates the First Amendment), aff., In re Tam, 808 F.3d 1321 (Fed. Cir. 2015).

Similarly, the concurring opinion by Justice Anthony M. Kennedy, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, agreed that sanitizing speech in the name of neutrality violates the First Amendment:

[The Government argues] that the law is viewpoint neutral because it applies in equal measure to any trademark that demeans or offends. This misses the point. A subject that is first defined by content and then regulated or censored by mandating only one sort of comment is not viewpoint neutral. To prohibit all sides from criticizing their opponents makes a law more viewpoint based, not less so. … The logic of the Government’s rule is that a law would be viewpoint neutral even if it provided that public officials could be praised but not condemned. The First Amendment’s viewpoint neutrality principle protects more than the right to identify with a particular side. It protects the right to create and present arguments for particular positions in particular ways, as the speaker chooses. By mandating positivity, the law here might silence dissent and distort the marketplace of ideas.
 
The Government next suggests that the statute is viewpoint neutral because the disparagement clause applies to trademarks regardless of the applicant’s personal views or reasons for using the mark. Instead, registration is denied based on the expected reaction of the applicant’s audience. In this way, the argument goes, it cannot be said that Government is acting with hostility toward a particular point of view. For example, the Government does not dispute that respondent seeks to use his mark in a positive way. Indeed, respondent endeavors to use The Slants to supplant a racial epithet, using new insights, musical talents, and wry humor to make it a badge of pride. Respondent’s application was denied not because the Government thought his object was to demean or offend but because the Government thought his trademark would have that effect on at least some Asian-Americans.
 
The Government may not insulate a law from charges of viewpoint discrimination by tying censorship to the reaction of the speaker’s audience. The Court has suggested that viewpoint discrimination occurs when the government intends to suppress a speaker’s beliefs … but viewpoint discrimination need not take that form in every instance. The danger of viewpoint discrimination is that the government is attempting to remove certain ideas or perspectives from a broader debate. That danger is all the greater if the ideas or perspectives are ones a particular audience might think offensive, at least at first hearing.

Thus, speech that some view as racially offensive is protected not just against outright prohibition but also against lesser restrictions.  The Matal court emphasized that “the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.” Street v. New York, 394 U. S. 576, 592 (1969)

This is considered a bedrock principle underlying the First Amendment.  Justice William J. Brennan wrote in holding that flag burning is a form of offensive speech protected by the Constitution, "[i]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."  Texas v. Johnson, 491 U.S. 397, 414, 1989.  This is because "…debate on public issues should be uninhibited, robust, and wide-open and it may well include vehement, caustic, and sometimes unpleasantly sharp" speech.  New York Times v. Sullivan, 376 U.S. 254, 270 (1964)
 
Thus, the Supreme Court has protected the ability of an individual to wear the offensive message "Fuck the Draft" on the back of his jacket in a Los Angeles courthouse.  In Cohen v. California, 403 U.S. 15 (1971) the Court wrote "it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual."
 
Following in the footsteps of Cohen's protection, a federal appellate court held that the First Amendment protects racist speech-speech offensive to minorities and, for that matter, to many Caucasians-conveyed anonymously via the telephone to a public official.  In United States v. Popa, 187 F.3d 672 (D.C. Cir. 1999) the defendant called Eric Holder, then the United States Attorney for the District of Columbia, "a criminal, a negro" and "a whore, born by a negro whore."  Writing for a unanimous panel, Judge Ginsburg reversed the conviction: punishing the speech violated the Supreme Court's First Amendment test in United States v. O'Brien, 391 U.S. 367 (1968), he reasoned, such that the statute was unconstitutional as applied to those facts.  First Amendment protected such offensive bile from prosecution under a federal law restricting telephonic harassment.  Likewise, two weeks before the 2008 election, a California man left a vicious message about Barack Obama on a Yahoo finance message board. "Re: Obama fk the niggar, he will have a 50 cal in the head soon."  He followed it up with another ugly post, which began simply: "Shoot the nig."  U.S. v. Bagdasarian, 652 F.3d 1113, 1115 (9th Cir. 2011).  The Ninth Circuit held that such statements were only menacing.  The statements were not a "true threat" — which the court defined as a statement which, in the entire context and under all the circumstances, a reasonable person would foresee would be interpreted by those to whom the statement is communicated as a serious expression of intent to inflict bodily harm upon that person."  Id. at 1119. 
 
Offensive speech does not lose its protection just because it may be directed to a police officer.  The First Amendment, U.S. Const. amend. I, protects a significant amount of verbal criticism and challenge directed at police officers. Speech is often provocative and challenging, but it is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.  City of Houston, Texas v. Hill, 482 U.S. 451, 461 (1987)
In State of South Dakota v. Suhn, 2008 SD 128 (SD 2008) the South Dakota Supreme Court protected the speech of a man who yelled the following at a passing police cruiser as the bars let out around 2 a.m. in Brookings: “Fucking cop, piece of shit. You fucking cops suck. Cops are a bunch of fucking assholes.” In ruling for Marcus J. Suhn, the court wrote that “just because someone may have been offended, annoyed or even angered by Suhn’s words does not make them fighting words.”  See also, City of Bismark v. Schoppert, 469 N.W.2d 808 (North Dakota 1991) (defendant who referred to police officer as “fucking, bitching cop,” and replied “fuck you” to an officer’s request for identification could not be convicted of disorderly conduct.)  In Merenda v. Tabor, No. 12-12562, Non-Argument Calendar (11th Circuit 2013) held that the use of a barely audible “fucking asshole” to a law enforcement official was not fighting words and was, instead, protected by the First Amendment.  In Duran v. City of Douglas, 904 F.2d 1372, 1377-78 (9th Cir.1990), the Ninth Circuit held that a police officer's stop of a car from which the appealing defendant was making obscene gestures and yelling profanities at the officer was unlawful because the defendant's actions were protected by First Amendment.  In Brockway v. Shepherd, 942 F.Supp. 1012 (M.D.Pa.1996), the court found that a passenger in a car who extended "his middle finger" at a police officer did not engage in obscene conduct under the Commonwealth's disorderly conduct statute. See id. at 1016-17.  Likewise, in Wisconsin, in State v. Smith, 2013AP2516-CR a defendant was charged with disorderly conduct and with unlawful use of a computerized communication system because he posted two comments on a police department Facebook  page that read:

Fuck  the  fucking  cops  they  ant  shit  but  fucking  racist basturds an fucking all of y’all who is racist[.]
Fuck them nigers policy bitchs wat the you got on us not a darn thing so fuck off dicks[.] 

Judge Paul Lundsten agreed with Smith and threw out the convictions. Specifically, the judge determined that Smith’s language did not constitute “fighting words” since they were vague, not made to a person’s face and did not produce imminent lawless action.  Similarly, when a passing motorist shouted "sooey" to a police officer, he did not violate the statute because there was "no direct face-to-face contact or other exigent circumstances." Garvey v. State, 537 S.W.2d 709, 711 (Tenn.Crim.App.1975); see also Matter of Welfare of S.L.J., 263 N.W.2d 412, 420 (Minn.1978) (when young girl shouted obscenity to police officer who was standing fifteen feet away "rather than eye-to-eye, there was no reasonable likelihood that [the words] would tend to incite an immediate breach of the peace or to provoke violent reaction by an ordinary, reasonable person"); Hershfield v. Commonwealth, 14 Va.App. 381, 417 S.E.2d 876, 877-78 (1992) (when one neighbor shouted obscenity to another, "distance and barriers" precluded an immediate breach of the peace).
 
Thus, there is simply no question that the free speech clause protects a wide variety of speech that listeners may consider deeply offensive, including statements that impugn the flag, another's race or national origin or that denigrate religious beliefs.  As Justice Jackson told us, “freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.”  West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943).  In the end, it must be understood that the way to expose falsehood and fallacies is more speech, not enforced silence, since freedom to think as you will and to speak as you think are means indispensable to American democracy.  Whitney v. California, 274 U.S. 357, 375 (1927), Brandeis, J., concurring.

"Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety."  Benjamin Franklin, from a letter that Franklin is believed to have written on behalf of the Pennsylvania General Assembly

It is look good legislation designed for politicians to get votes to pass a law requiring metal detectors and scanners at the doors of public buildings like the courthouse.  By throwing up inefficient methods to combat “terrorism,” politicians can claim to the public they have done something to protect the public.  In point of fact, all the politicians have done is waste tax dollars.

What is my basis for saying this?

In brief, the chances of being killed in a terrorist attack are about 1 in 20 million.  As The Atlantic has explained:

• "The total number of worldwide attacks in 2011, however, dropped by almost 12 percent from 2010 and nearly 29 percent from 2007." (9)
• "Attacks by AQ and its affiliates increased by 8 percent from 2010 to 2011. A significant increase in attacks by al-Shabaab, from 401 in 2010 to 544 in 2011, offset a sharp decline in attacks by al-Qa'ida in Iraq (AQI) and a smaller decline in attacks by al-Qa'ida in the Arabian Peninsula (AQAP) and al-Qa'ida in the Islamic Maghreb (AQIM)." (11)
• "In cases where the religious affiliation of terrorism casualties could be determined, Muslims suffered between 82 and 97 percent of terrorism-related fatalities over the past five years." (14)
• Of 978 terrorism-related kidnapping last year, only three hostages were private U.S. citizens, or .003 percent. A private citizen is defined as 'any U.S. citizen not acting in an official capacity on behalf of the U.S. government.' (13, 17)
• Of the 13,288 people killed by terrorist attacks last year, seventeen were private U.S. citizens, or .001 percent. (17)

The number of U.S. citizens who died in terrorist attacks increased by two between 2010 and 2011; overall, a comparable number of Americans are crushed to death by their televisions or furniture each year. This is not to diminish the real--albeit shrinking--threat of terrorism, or to minimize the loss and suffering of the 13,000 killed and over 45,000 injured around the world. For Americans, however, it should emphasize that an irrational fear of terrorism is both unwarranted and a poor basis for public policy decisions.” 

Of course, one reason people’s fears don’t line up with actual risks is that our brains are wired by evolution to make fast judgements which are not always backed up by logical reasoning. “Our emotions push us to make snap judgments that once were sensible—but may not be anymore,” Maia Szalavitz, a psychiatrist, wrote in Psychology Today (2008).  Because fear strengthens memory, catastrophes such as earthquakes, plane crashes, and terrorist incidents completely capture our attention, Szalavitz explains. As a result, we overestimate the odds of dreadful but infrequent events and underestimate how risky ordinary events are. The drama and excitement of improbable events make them appear to be more common. The effect is amplified by the fact that media tend to cover what's dramatic and exciting. The more we see something, the more common we think it is, even if we are watching the same footage over and over.

So a person is as likely to be killed by his or her own furniture, and more likely to die in a car accident, drown in a bathtub, or in a building fire than from a terrorist attack.

The National Consortium for the Study of Terrorism and Responses to Terrorism (START) has published, Background Report: 9/11, Ten Years Later. The report notes, excluding the 9/11 atrocities, that fewer than 500 people died in the U.S. from terrorist attacks between 1970 and 2010. The report adds, “From 1991-2000, the United States averaged 41.3 terrorist attacks per year. After 2001, the average number of U.S. attacks decreased to 16 per year from 2002-2010.”

Of course, the police and politicians will cite the lack of deaths from terrorism as evidence that their protective measures are working. Earlier this year, the conservative Heritage Foundation compiled a list of 39 terror plots that had been foiled since September 2001. Going through the list, about 23 of the plots might plausibly have resulted in terror attacks of one sort or another. Several were aimed at subways, military bases, and shopping malls. To get a feel for the number of people that might be killed in typical terrorist attacks, consider that four subway bombs killed 52 people in London in 2005; the deadliest attack on a military base killed 13; and blowing up the Alfred P. Murrah Federal Building in Oklahoma City, Oklahoma, killed 187 people in 1995.

Making the huge assumption that all 23 plausible plots would have succeeded in killing an average of 100 Americans each, that means that 2,300 would have died in the last 10 years, or about 230 per year. (This implies a rate that is 10 times higher than the rate between 1970 and 2010, excluding the 9/11 attacks, by the way.) Even at this higher rate, your chances of dying in a terrorist attack would be about 1 in 1.7 million.

Ohio State University political scientist John Mueller and Mark Stewart, an engineering professor at University of Newcastle in Australia estimated that the U.S. has spent $1 trillion on anti-terrorism security measures since 2001 (this figure does not include the costs of the wars in Iraq and Afghanistan). Assuming that 2,300 Americans might have been killed by terrorists inside the United States, this implies a cost of more that $400 million dollars per life saved.  Professors Mueller and Stewart explain, “Although there are emotional and political pressures on the terrorism issue, this does not relieve politicians and bureaucrats of the fundamental responsibility of informing the public of the limited risk that terrorism presents and of seeking to expend funds wisely.

However, terrorism is especially frightening (that’s why they call it “terrorism”), so the average citizen might want to spend double the usual amount to prevent a death. But still suggests that on a reasonable benefit-cost basis public and private spending is 20 times too much to prevent deaths from terrorist attacks. Now let’s retrospectively add the tragic 3,000 deaths from the 9/11 attacks to take into account the remote possibility that terrorists might be able to pull off another similarly spectacular assault; that still means that nearly $200 million is being spent per plausible life saved.

Since 2001, we all get to enjoy courthouse security theater and watch the public have to strip in order to enter our own courthouse.  Now you must have proper “papers” in order to gain admission to taxpayer financed federal buildings; and federal minions have felt free to wiretap without warrants.  As Human Rights Watch has concluded, “These post-September 11 laws, when viewed as a whole, represent a broad and dangerous expansion of government powers to investigate, arrest, detain, and prosecute individuals at the expense of due process, judicial oversight, and public transparency. Such laws merit close attention, not only because many of them restrict or violate the rights of suspects, but also because they can be and have been used to stifle peaceful political dissent or to target particular religious, ethnic, or social groups.”

America can never forget those who died tragically. But we should remember Franklin’s words and never give up our liberties out of irrational fear of terrorism.
 

Quick: Name the largest provider of mental health care in America. If you guessed "our prisons and jails," you would be right.

A 2006 U.S. Department of Justice study found that three out of four female inmates in state prisons, 64% of all people in jail, 56% of all state prison inmates and 45% of people in federal prison have symptoms or a history of mental disorder.

America's approach when the mentally ill commit nonviolent crimes -- locking them up without addressing the problem -- is a solution straight out of the 1800s.   When governments closed state-run psychiatric facilities in the late 1970s, it didn't replace them with community care, and by default, the mentally ill often ended up in jails. There are roughly as many people in Anchorage, Alaska, or Trenton, New Jersey, as there are inmates with severe mental illness in American prisons and jails, according to one 2012 estimate. The estimated number of inmates with mental illness outstrips the number of patients in state psychiatric hospitals by a factor of 10.

Don't look now, but here is another criminal system reform brought by funding of legalized marijuana.  Pleading poverty and staffing shortages, Colorado sheriffs went to lawmakers seeking permission to hold mentally ill suspects in jails longer. State lawmakers instead outlawed the practice entirely, steering just over $9 million — with $6 million coming from marijuana tax revenue -- to pay for local crisis centers and transportation programs designed to keep those in mental distress out of the criminal justice system.
 
Few people think jail is an appropriate place for someone in a mental health crisis. Most jails, especially small rural facilities, do not have mental health staffers on site. For the suicidal, law enforcement agencies have few options other than periodically stopping by the cell to check on the person and putting potentially violent individuals in restraints and seclusion. Once someone has been held for 24 hours, he or she has to be charged, transferred to a treatment facility or released. “People should not, because of their mental illness, be in jail,” said Jennie Simpson, a public health analyst with Substance Abuse and Mental Health Services Administration, the federal agency that oversees national behavioral health policies.
 
There are no national figures on how many people are held each year in jail just because they have nowhere else to go in a mental health crisis. Reports from the federal agency overseeing hospitals — the Centers for Medicare and Medicaid Services — offer a glimpse. Since 2011, at least 22 hospitals in 16 states have been cited by CMS for failing to stabilize patients in need of mental health help, instead handing them over to law enforcement to wait for a psychiatric evaluation or a bed. The hospitals span the country, from Alabama and South Dakota to New York and Ohio.
 
Rather than holding inmates in jail longer, counties could direct more resources to mental health treatment court (Dane County has such a program) jail diversion program for people with mental illnesses. Data show that those who completed three years of this treatment spent 73 percent less time incarcerated in the three years after admission than they did in the three years prior to admission. Additionally, 89 percent of the clients who completed their court requirements have elected to continue treatment, which reduces the likelihood of future police contact.
 
Another example is Richland County, South Carolina. About 83 percent of all mental health court graduates have had no further commitments or arrests since successful completion of its program. It is successes like this that provide hope for reducing the number of people with mental illnesses in jail while improving jail conditions for those inside. Any facility changes that move forward should promote these goals.

Charles E. Trimble is an Oglala Lakota from the Pine Ridge Reservation explained in Indian Country Today that some Native Americans refused to be photographed. One of the most famous Native Americans in history, Tȟašúŋke Witkó (literally "His-Horse-Is-Crazy"; c. 1840 – September 5, 1877) or Crazy Horse, was never photographed while alive.  He ranks among the most notable and iconic of Native American warriors and was honored by the U.S. Postal Service in 1982 with a 13¢ Great Americans series postage stamp.  However, he never allowed his photograph to be taken, even while on his deathbed."  Indian agent Valentine McGillicuddy recalled that when he urged the chief to pose for a picture: "His invariable reply to my request was 'My friend, why should you shorten my life by taking from me my shadow?'"

While Mr. Trimble offers some other explanations, it has been suggested by others that Native Americans had a religious belief that a facial photograph can steal a soul, imprisoning it within its picture. In 1908, Walter Camp wrote to the agent for the Pine Ridge Reservation inquiring about a portrait. "I have never seen a photo of Crazy Horse," Agent Brennan replied, "nor am I able to find any one among our Sioux here who remembers having seen a picture of him. Crazy Horse had left the hostiles but a short time before he was killed and it's more than likely he never had a picture taken of himself."  Brennan to Camp, undated (December 1908), Camp Collection, Little Bighorn Battlefield National Monument.

Based on developing 21st century technology, Crazy Horse’s idea that facial photographs could steal your soul may turn out to be true.  At least if one thinks of “soul” as meaning a person’s mind thoughts, and feelings.  Today, that thief is the government.
Suppose you do any of the following:

• Apply for a driver’s license
• Apply for a state identification card
• Apply for a passport
• Were arrested for a seat belt violation, taken you to police station and picture taken, commonly referred to as a mugshot.

 
In all of these circumstances the government has taken your picture and now use it during a criminal investigation.In March 2017, the FBI detailed how their facial recognition programs work.Generally, here is what could happen.There is a knock on your door. It’s the police. There was a robbery in your neighborhood. They have a suspect in custody and an eyewitness. But they need your help: Will you come down to the station to stand in the line-up?
 
Most people would probably answer “no.” This summer, the Government Accountability Office revealed that close to 64 million Americans do not have a say in the matter: 16 states let the FBI use face recognition technology to compare the faces of suspected criminals to their driver’s license and ID photos, creating a virtual line-up of their state residents. In this line-up, it’s not a human that points to the suspect—it’s an algorithm.
_____________________________________________________________________________________________                  One in two American adults is in a law enforcement face recognition network.

______________________________________________________________________________________________

• Police departments in nearly half of U.S. states can use facial-recognition software to compare surveillance images with databases of ID photos or mugshots. Some departments only use facial-recognition to confirm the identity of a suspect who’s been detained; others continuously analyze footage from surveillance cameras to determine exactly who is walking by at any particular moment. Altogether, more than 117 million American adults are subject to face-scanning systems.
  

These findings were published in a report from Georgetown Law’s Center for Privacy and Technology. It details the results of a year-long investigation that drew upon more than 15,000 pages of records obtained through more than 100 freedom-of-information requests.

The study’s authors—Clare Garvie, Alvaro Bedoya, and Jonathan Frankle—attempted to fill in large gaps in public knowledge about how facial-recognition technology is used, and the existence of policies that constrain how police departments can use it. Some details about the FBI’s use of facial scanning were previously known, but the scale of local and state law-enforcement involvement is only now starting to come to light.  Never before has federal law enforcement created a biometric database—or network of databases—that is primarily made up of law-abiding Americans,” the report says.

That means that some departments have gotten away with patently absurd uses of the technology: In Maricopa County, Arizona, the sheriff’s office—led by a famously combative and anti-immigrant sheriff—downloaded every driver’s license and mugshot from every resident of Honduras, provided by the Honduran government, to its facial-recognition database.
 
Departments that use the technology in a more straightforward way can still be stymied by the inaccuracies and biases that often plague facial-recognition algorithms. They’ve been found to perform more poorly on African-American faces than on other races, which can make it more likely that a system will misidentify an innocent black person as a suspect. And because African-Americans are disproportionately likely to be arrested—and thus show up in mug-shot databases—systems that use booking photos will be more likely to flag an African-American face than a caucasian one.
 
A major problem with facial recognition technology is the probability of a given feature’s distinctiveness. As the FBI’s Forensic, Audio, Video and Image Analysis Unit (FAVIAU) explained, “Lack of statistics means: conclusions are ultimately opinion-based.” To remedy this flaw, a 2008 FBI report recommended that the agency undertake research to quantify the frequency of facial features. But such efforts, which have been underway since at least the late 19th century, have so far proved inconclusive.
 
The Georgetown report indicates the more common way law enforcement will use facial recognition technology:
 
• Stop and Identify.
On patrol, a police officer encounters someone who either refuses or is unable to identify herself. The officer takes her photo with a smartphone or a tablet, processes that photo through software installed on that device or on a squad car computer, and receives a near-instantaneous response from a face recognition system. That system may compare that “probe” photo to a database of mug shots, driver’s license photos, or face images from unsolved crimes, also known as an “unsolved photo file.” (As part of this process, the probe photo may also be enrolled in a database.) This process is known as field identification.

• Arrest and Identify.

A person is arrested, fingerprinted and photographed for a mug shot. Police enroll that mug shot in their own face recognition database. Upon enrollment, the mug shot may be searched against the existing entries, which may include mug shots, license photos, and an unsolved photo file. Police may also submit the arrest record, including mug shot and fingerprints, to the FBI for inclusion in its face recognition database, where a similar search is run upon enrollment.

• Investigate and Identify.

While investigating a crime, the police obtain a photo or video still of a suspect from a security camera, smartphone, or social media post—or they surreptitiously photograph the suspect. They use face recognition to search that image against a database of mug shots, driver’s licenses, or an unsolved photo file and obtain a list of candidates for further investigation, or, in the case of the unsolved photo file, learn if the individual is wanted for another crime.  Alternately, when police believe that a suspect is using a pseudonym, they search a mug shot of that suspect against these same databases.

• Real-time Video Surveillance.

The police are looking for an individual or a small number of individuals. They upload images of those individuals to a “hot list.” A face recognition program extracts faces from live video feeds of one or more security cameras and continuously compares them, in real-time, to the faces of the people on the hot list. Every person that walks by those security cameras is subjected to this process. When it finds a match, the system may send an alert to a nearby police officer. Today, real-time face recognition is computationally expensive and is not instantaneous.  Searches can also be run on archival video.

Other concerns about facial recognition technology (FRT) also include:

• A reasonable expectation of privacy includes a reasonable expectation of anonymity from government use of computer algorithms and databases to capture law abiding citizens’ faces and identify them without their knowledge or consent.

• FRT allows for a different kind of tracking that can occur from far away, in secret, and on large numbers of people. Fingerprints are only left on things you touch and you know when police are taking them. You can’t leave your face at home and, with limited exceptions, it isn’t acceptable to cover it. Depending how it’s used, FRT could rob citizens of a reasonable expectation of anonymity.
 
• Giving police the right to do this without judicial oversight creates a slippery slope that could lead to real-time, mass surveillance like that of Big Brother. Police have an incentive to collect as many photos as possible because the larger the database the more likely they are to get a match and solve a crime or identify a suspect or person of interest.

• Real-time, mass surveillance could also chill First Amendment speech unpopular with the government. Advocates point to the FBI’s disgraced COINTELPRO program of surveillance against civil rights activists and Vietnam War protesters during the ‘60s and ‘70s.

Specific legal concerns are:
1. Does a face recognition constitute a “search” that triggers Fourth Amendment protection?
2. What is the legal standard police must meet before using FRT?
3. Does your state have a law regulating the collection of biometric data? 
 

From ACLU brief to US SCt on United States v. Carpenter, 819 F.3d 880 (6th Cir. 2016)
 
When the government employs new technology to obtain sensitive personal information in a way that diminishes the degree of privacy that individuals reasonably expected prior to the technology’s adoption, it conducts a search under the Fourth Amendment. Applying this principle in United States v. Jones, 565 U.S. 400 (2012), five Justices concluded that longer-term GPS tracking of a car violates reasonable expectations of privacy.  Tracing a person’s geographical movements reveals highly sensitive personal information, and prior to the digital age, people reasonably expected that police in most investigations would not have followed a person and recorded her every movement for days or weeks on end.
 
Likewise government agents engage in a Fourth Amendment search when they intrude on an expectation of privacy that society is prepared to recognize as reasonable. Kyllo v. United States, 533 U.S. 27, 33 (2001); Katz v. United States, 389 U.S. 347, 361(1967) (Harlan, J., concurring). The touchstone for determining when an expectation of privacy is reasonable is “the everyday expectations of privacy that we all share.” Minnesota v. Olson, 495 U.S. 91, 98 (1990). For example, this Court held in Katz that the Fourth Amendment applies to conversations transmitted over telephone lines because phones played a “vital role” in conducting the type of communication previously treated as “private.” 389 U.S. at 352-53.
 
As new technology has dramatically lowered the cost of government surveillance and increased the government’s access to private information, this Court has stressed that the reasonable-expectation of privacy inquiry must “assur[e] preservation of that degree of privacy against government that existed” prior to the advent of the new technology in question.  United States v. Jones, 565 U.S. 400, 406 (Scalia, J.) (alteration in original); id. at 420 (Alito, J., concurring in the judgment); Kyllo, 533 U.S. at 34; see also Riley v. California, 134 S. Ct. 2473, 2490 (2014) (requiring a warrant to search contents of cell phones seized incident to arrest in order to preserve degree of privacy enjoyed before invention and pervasive use of cell phones).
 
Applying this framework in United States v. Jones, five Justices agreed that people have a reasonable expectation of privacy in “longer term GPS monitoring in investigations of most offenses.”  Jones, 565 U.S. at 430 (Alito, J., concurring in the judgment); id. at 415 (Sotomayor, J., concurring).  Because GPS monitoring of a car tracks “every movement” a person makes in that vehicle, id. at 430 (Alito, J., concurring in the judgment), it generates extremely sensitive and private information that “enables the Government to ascertain, more or less at will, [people’s] political and religious beliefs, sexual habits, and so on,” id. at 416 (Sotomayor, J., concurring). Prior to the digital age, this information would have been largely immune from search.  Although historically the government could have tasked a team of agents with surreptitiously tailing a suspect, doing so “for any extended period of time was difficult and costly and therefore rarely undertaken.” Id. at 429 (Alito, J., concurring in the judgment). Therefore, “society’s expectation has been that law enforcement agents and others would not—and indeed, in the main, simply could not—secretly monitor and catalogue every single movement of an individual’s car for a very long period.” Id. at 430.
 
For the same reason that five Justices concluded that there is a reasonable expectation of privacy in longer-term GPS monitoring of a car, there is a reasonable expectation of privacy in longer-term cell phone location records. Any other conclusion would allow the government to circumvent the principle accepted by five Justices in Jones through the simple expedient of obtaining cell phone location records. People use their cell phones throughout the day—when they are at home, work, or school, when they are in the car or on public transportation, when they are shopping or eating, and when they are visiting the doctor, a lawyer, a political associate, or a friend.  People even keep their phones nearby and turned on while they are asleep.  Indeed, “nearly three-quarters of smart phone users report being within five feet of their phones most of the time, with 12% admitting that they even use their phones in the shower.” Riley, 134 S. Ct. at 2490.
 
“[D]etails about the location of a cell phone can provide an intimate picture of one’s daily life.” State v. Earls, 70 A.3d 630, 642 (N.J. 2013). Historical cell site location information “can reveal not just where people go—which doctors, religious services, and stores they visit—but also the people and groups they choose to affiliate with and when they actually do so.” Commonwealth v. Augustine, 4 N.E. 3d 846, 861 (Mass. 2014) (quoting Earls, 70 A.3d at 642). And to state the obvious, when people make a “visit to a gynecologist, a psychiatrist, a bookie, or a priest,” they typically “assume that the visit is private.” United States v. Davis, 754 F.3d 1205, 1216 (11th Cir. 2014) (Sentelle, J.), rev’d en banc, 785 F.3d 498 (11th Cir. 2015).