The Lefty Lawyer: What’s ‘reasonable’ about Long Beach’s use of Facial Recognition Technology?

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

— Text from the 4th Amendment of the U.S. Constitution

If someone had my unlocked cell phone, they would have access to my conversations with my friends, which, taken together, amount to a stream of my consciousness; they’d have access to my work email, where I brainstorm strategy and dispense legal advice, and most of my written work product; my cell phone would also reveal my shared grocery list with my partner, my calendar, my most recent trips (at least the ones where I used Google maps), and even the number of steps the phone estimates I’ve taken that day. My phone would reveal my innermost thoughts and everywhere I’ve been on the internet and in the physical world. Most people I know have this same staggering vulnerability sitting in their pockets.

Against this backdrop, I want to open this column with some thoughts on what privacy means in the Fourth Amendment context, in an age where our personal data is the price of admission to much of modern life, and ever more powerful technologies can identify, locate, and track us. I’d especially like to look at the opportunity that the City Council has right now to take up this issue, and why we should take every chance to protect our privacy rights.

Between 2019 and 2021, cities and even some states across the country banned or severely restricted the use of Facial Recognition Technology (FRT) for a myriad of reasons; from the unreliability of the results to the injustice in who is mostly targeted. Since then, amidst the backlash against the movement to defund and abolish the police, several jurisdictions have rescinded their bans or created exceptions, and the issue remains at the forefront of debates around privacy and policing. What about here in Long Beach? In December, the city manager sent a memo to the City Council on the use of FRT, containing the reports and recommendations from the Technology and Innovation (TIC) and the Equity and Human Relations (EHRC) commissions, as well as a memo by the Long Beach Police Department (LBPD) and the city manager’s own recommendation.

When it comes to legal schools of thought, I am far from an originalist, who would have us interpret the Constitution based on its “original” meaning. I don’t care what the enslavers and slavery apologists who wrote the Constitution had in their heads back in 1789 when they drafted it. But let’s think for a minute about the Fourth Amendment in the context of the 18th Century.

What could an officer searching someone’s “person, hous[e], papers, and effects” actually access in 1789? The papers described would only be physical ones, and the effects in question would not tattle on the minute-by-minute decisions and whereabouts of their owner. People in 1789 did not have the ability to compromise their own privacy the way we do in 2023.

But that’s not all that has changed since then. The key word in the Fourth Amendment is “unreasonable.” The U.S. Supreme Court has interpreted the Fourth Amendment to protect people everywhere they have a “reasonable expectation of privacy.” Privacy from whom? In this context, it means privacy from regular people, the public, as well as state actors. For example, you probably expect that your neighbor will not barge into your house uninvited. You also probably understand that a phone call that you take in a crowded coffee shop could be overheard. But what is reasonable? It’s not subjective—you are not safe from government intrusion everywhere you believe you should be. Other people must agree that it was reasonable for you to expect privacy in that context. Even the staunchest originalists agree that what is considered reasonable shifts over time. “Reasonable” depends on social norms that we collectively shape and amend every day.

This makes privacy a collective action problem. Establishing stronger norms would require long-term behavioral shifts from many people; adopting those behaviors individually is challenging. We know that we are leaving traces of ourselves every time we search, browse, or scroll. That data is valuable to companies who want to target us as consumers with ever finer precision and monitor us ever more closely as a result.

California passed the Consumer Privacy Act and we now have the option not to share our cookies with the websites we view. But we must toggle the options every time, which is annoying. Do you still customize your privacy preferences on every site? Did you ever? We must create myriad accounts and share our personal information over and over in order to access various apps or go online shopping. I know many people who accept as inevitable that strangers, whether companies or hackers or the government, will access their personal information.

Companies like Meta—the umbrella corporation behind Facebook and Instagram—want us to feel that inevitability. They are even selling back to us the experience of being targeted by ads—they are not spying on us and using their intel to sell us things! No, they are improving our consumer experience. How lost would we be without their suggestions, keyed as they are to our personalities at their most granular level? We are seduced by consumer goods and convenience into a state of perpetual observation. The adage that “if you can’t tell what they’re selling, you are the product” grows ever more relevant.

It’s not only in the digital world that I know that I am being observed. Long Beach has 1,350 cameras installed across the city. Ring cameras stare out from door after door. The Long Beach Police Department has access to both, through an integrated system called LBCOP and a special agreement with Amazon, which owns Ring. In January, the Fourth
Street Business Improvement Association budgeted $1,000 to buy Ring cameras for the shopping district between Cherry and Temple avenues.

When I walk my dog, my image and my exact location are up for grabs. Facial recognition tools such as Clearview AI, which the LBPD tested and used through free trials, can identify and match me to every photo of me on the web, including social media. If I park in any parking lot or structure, an automated license plate reader might register my presence and transmit it to anyone who has bought their services—which both LBPD and the Department of Homeland Security have purchased from the company Vigilant Solutions.

If I accept that this state of affairs is normal, if I accept this diminishment of my privacy, I am also contributing to the erosion of other people’s privacy. I am contributing to what is “reasonable.” Utilitarian theorist Jeremy Bentham designed what he believed to be the perfect prison, the Panopticon, in which a central guard tower has complete and constant visual access to prisoners’ cells, but the prisoners cannot see into the guard tower. Because they cannot know whether or not they are being observed but could be at any time, Bentham believed the prisoners would always comply. Two centuries later, Michel Foucault used this concept to describe modern society’s internalization of the state’s power, and the more subtle systems gauged to ensure the docility of the masses. That seminal work’s title is translated in English as Discipline and Punish, but in French, it is Surveiller et punir. To surveil and punish.

When we know that we are being watched, we change our behavior; we reveal only our public selves. We become our own police officers. When we accept that we are being watched and that we have no reasonable expectation of privacy, we shrink the protections of the Fourth Amendment and expand the power police officers have over all of us. But of course, the impact of police intrusion does not hit evenly. Police disproportionately stop, arrest, charge, and book people of color, who are then also more likely to face prosecution and harsher sentences. Police are also far more likely to harm and kill Black, Indigenous, and Latine people.

The gradual loss of our privacy in the digital age may seem like an intractable problem, but there are concrete measures we can take now to scale back the surveillance power of police here in Long Beach.

Returning to where we began, when he issued his memo on FRT, City Manager Tom Modica advised the City Council to permit the LBPD to use facial recognition unfettered – contrary to the recommendations of both TIC and EHRC, which urged the city to implement a moratorium and a ban, respectively.

The city manager appears to have based his recommendation exclusively on LBPD’s memo, whereas both TIC and EHRC engaged in lengthy processes open to participation from the community. Both commissions considered the disparate racial impact of facial recognition technology and that disparity informed their opinion that LBPD should not have access to it.

While LBPD claims that it limits its use of FRT to particular circumstances, its record does not bear this out. LBPD has used FRT thousands of times on people protesting against LBPD, a clear abuse of power. And that is what we do know; we can’t know all the ways it has abused the technology, because LBPD has not kept accurate records on its use of FRT.

Permitting LBPD to use FRT freely dilutes our reasonable expectation of privacy and opens us up to more abuse. Different people will suffer from that dilution to different degrees and people of color will bear the brunt of police overreach and violence. But we all have a role in stemming the loss. We have a new mayor, a new City Council, and a new opportunity to restrain the power of the LBPD and, like other cities have done, ban the police’s use of this powerful technology.