Jen Carnig: Welcome to Keep Me Posted – a podcast from Spitfire Strategies about the intersection of race, rights, democracy and justice in the digital age. -- I’m your host, Jen Carnig, Chief Advocacy Officer at Spitfire.
Each episode of Keep Me Posted is a short conversation with leading experts and advocates in law, civil rights and technology. You can follow the show on Twitter @KeepMePostedPod.
The aftermath of the violence at the U.S. Capitol on Jan. 6 has driven calls from policymakers and in the press for expanding the use of surveillance and facial recognition technologies, which has civil rights and justice advocates concerned.
Though the use of these technologies has many feeling that the perpetrators of the insurrection are being brought to justice, many advocates worry that — especially in the hands of police — their use will only aid a pattern of discrimination, surveillance, overpolicing and censorship for communities of color, oftentimes those working to build a more just society.
As state and local governments reckon with the harmful impact these technologies have on Black and brown communities — placing moratorium on their use completely — the problem is much bigger.
This week I’m so excited to speak with Alvaro Bedoya, Founding Director of the Center on Privacy & Technology at Georgetown Law School, where he is also a Visiting Professor of Law and Director of the Federal Legislation Clinic. An expert on government surveillance, commercial data collection and their impact on immigrants and people of color, Professor Bedoya is the co-author of the 2016 report The Perpetual Line-Up: Unregulated Police Face Recognition in America, the result of a year-long investigation that revealed that most American adults are enrolled in a police face recognition database. Before founding the Center, he served as Chief Counsel to the U.S. Senate Judiciary Subcommittee on Privacy, Technology and the Law.
Jen Carnig: Well, I am delighted today to be joined by Alvaro Bedoya, Founding Director of the Center for Privacy and Technology at Georgetown Law. You're one of the first people I ever got to work with at Spitfire, and I'm just grateful to you as a colleague and a person. So thanks so much for making the time to join me today, as we record on a Saturday because of the world we're living in.
Alvaro Bedoya: Thank you for having me and thank you for accommodating a Saturday.
Jen Carnig: [Laughing] Well, if I was going to spend a Saturday drinking coffee and chatting about surveillance with anyone, it would be you.
Alvaro Bedoya: Well, thank you. Well, I appreciate that. I'll try, I'll try to keep things interesting.
Jen Carnig: So you and I are talking at what feels to me at least like a really unique time, at least in recent American history, which is certainly saying something after the past four years we had. We are speaking close on the heels of the insurrection of January 6th and then the inauguration, and it's bringing up a lot. I would be remiss to not kind of start there. In the days following all of this, the brutal acts of white supremacy and the new day in Washington, I would love to just kind of hear really some of your top of the line thoughts and what is front of mind for you both in terms of thinking about increased surveillance that we're going to be seeing and who it's going to be impacting. And also looking forward, it feels like a moment of opportunity now, maybe. What are you thinking about with the new administration, too?
Alvaro Bedoya: Sure. So, I think that now is an important time to reflect on what is security and what is this security state that we have built and who is it working for, if it allowed what happened at the Capitol? And I think that if we stop and reflect on the security state we have built, you have to come to the conclusion that we have built a security state around the idea that immigrants are dangerous. In 2002, when the Department of Homeland Security, the act establishing it was passed at the urging of then President George W. Bush, DHS was supposed to be the centerpiece of our response to terrorism. It was the crown jewel of this response. It was supposed to guarantee that this didn't happen to our country again. And 20 years later, or I guess 19 years later, if you look at who federal law enforcement is, if you look at the prosecutions they are bringing, if you look at the defendants, the target of federal law enforcement is not terrorists. The target is immigrants. This isn't opinion. These are numbers. This is a fact. And so, who are federal law enforcement agents? Well, Customs and Border Protection and Immigration and Customs Enforcement officers vastly outnumber FBI agents; Alcohol, Tobacco, Firearms officers; Drug Enforcement Agency, DEA agents, combined. So a majority of federal law enforcement officers are, in fact, immigration enforcement. Look at the prosecutions, depending on the year, either a majority of federal criminal prosecutions are for immigration or the most common federal criminal prosecution is for immigration. Look at the defendants. This most recent report from the Office of Federal Courts will tell you that most federal criminal defendants were Latinx. They weren't white, they weren't Black, they weren't Asian-American, they weren't Native American, they were Hispanic, they were Latinx people. So we have our federal security apparatus is primarily an immigration enforcement apparatus. January 6th speaks to this lie we've been telling ourselves about who is dangerous and who we need to secure ourselves against. And a lot of people are now saying, ‘Well, gotta watch the white supremacists!’ And look, I'm not going to object to a bonafide credible, criminal investigation into violent white supremacy. Of course, you need to investigate white supremacists. But I don't think that the answer to the problem we're facing right now is new surveillance authorities, even more money to watch people, to track people.
Jen Carnig: And why is that? Why?
Alvaro Bedoya: Well, a couple things. First of all, this attack was not hidden, right? The problem here was not that these people were planning this in encrypted chats out of the view of authorities. This was planned in the open. This was not an issue of 'who needs to be watched?' This was an issue of who authorities see as dangerous. So, the problem wasn't that federal law enforcement didn't know about these insurrectionists, the problem was they didn't see them as dangerous. And so the problem was not lack of surveillance, the problem was white supremacy. And this idea that if the threat is white, if the threat is not coming from people of color, from immigrants, then it isn't a threat. And so that's the first thing. The second thing is that, 20 years after September 11th, we have to reckon with the fruits of this surveillance project. You know, and so after September 11th, we passed a series of authorities letting the American government watch more, listen more, track more domestically. And if you look at the vastest of those, or if you look at the most expansive of those programs, each of them was a failure with, with few exceptions. Look at the NCS program, which required immigrants to come in and register and present themselves for interviews with Immigration and Customs Enforcement. You know, they caught a lot of people for overstaying their visas. They caught a lot of people for paperwork errors and other petty crimes that perhaps they were committing or allegedly committed. They didn't catch any terrorists. Look at the NYPD's demographic initiative. And I know you were at NYCLU, Jen --
Jen Carnig: Yeah, I worked on this case. Yeah.
Alvaro Bedoya: Yeah. And who do they catch? Not one terrorist.
Jen Carnig: That's right.
Alvaro Bedoya: This was an initiative where the NYPD, I believe, partnered with someone who had a background in the CIA or the intelligence services. And they said, “Well, we need to have a clear map of Muslims in the New York region. And so we're going to go to mosques, we're going to send people we're literally going to call 'mosque crawlers.' They're going to go to coffee shops, they're going to go to bus stops, and they're just going to listen, and they're going to track. And we’re going to map the Muslim community because we need to have a sense who is where.” And again, this vast program, tons of money, tons of energy, years of efforts, zero terrorists convicted.
Jen Carnig: Yeah, absolutely.
Alvaro Bedoya: And then finally, you've got the NSA call records program where you had the NSA tracking, logging the calls -- substantially “all the calls,” I believe is the term they used domestically -- so, who was calling, who was receiving, how long the call was, and I believe some other information, although not the contents of the calls. And again, not one terrorist was caught as a result of this program. And so, if you look at the scorecard, it does not look good for domestic surveillance. And I think we need to have a more expansive view of “what is safety? What is security?” because surveillance clearly is not the ticket.
Jen Carnig: And if we were to expand surveillance capacity or surveillance systems, I mean, it seems then it kind of leads to who's going to be impacted by that, right? And to your point, you're saying that white supremacists are doing it out in the open, so then who is going to be surveilled if we open the door to more surveillance? And I'm actually teeing that up to you as a question. Who do you think will be impacted, will be targeted by that, should we follow the lessons of 9/11 and just start surveilling more folks?
Alvaro Bedoya: I think a pattern that you see is, you see very expansive tools being acquired, justified on the grounds of national security and terrorism and being used to prosecute petty drug crimes and immigration offenses, many of which are not even crimes, many of which are just civil offenses. There's two sides of the coin and it's pretty interesting. And so, first of all, you see a disparate impact on poor people, on Black people, on Brown people, on people who are not Christian, who belong to other faiths, anyone who is considered other. But the other thing that's really interesting is that immigrants are often the canaries in the coal mine. And so, a lot of people don't realize that the NSA call records program was, it appears by all appearances, modeled after a drug enforcement agency program that logged the calls made from the United States to several countries. But, lo and behold, substantially all of Latin America was covered at some point in that program. And so, our nation's largest and most notorious domestic surveillance program was basically beta-tested on immigrants, right? You know, most people making international calls to Latin America in the 1990s were not the people on Miami Vice, it was the people like me and my family were calling her grandmother in Northern Peru to wish her a happy Sunday and see how she's doing. So, there's two sides of the coin. The first is that there would categorically be a disparate impact. And the other side is that what happens to immigrants inevitably trickles down to everybody else. And so both of these are very good reasons to watch how these technologies are deployed on immigrants, on people of color and on anyone society is generally considered to be other.
Jen Carnig: The Center on Privacy and Technology at Georgetown Law, which you founded, talks a lot about and is known for its work on the "color of surveillance." Is this what you mean? And can you tell me a little bit more about that concept, the color of surveillance, what that means?
Alvaro Bedoya: When we talk about surveillance in the 21st century, when you read about it in the newspaper, when you watch it on TV, the story is that 'everyone is watched.’ We're all watched, there's no privacy, you know, nothing is private, everybody's watched. And that's true. Everyone is watched in some way or another by some company or some government surveillance program that may be running in the background. That's true. But when we focus on the pervasiveness of surveillance, we tend to not focus on the fact that some people are watched an awful lot more than others. And to the degree that people are aware of the disparate impact of surveillance on how some people are watched an awful lot more than others, they might be aware of, for example, of what happened to Martin Luther King, where J. Edgar Hoover had him, wiretapped, had his hotel rooms bugged, and FBI agents created a compilation of the things they heard in those hotel rooms sent it to the Southern Christian Leadership Conferences offices, and the mailroom staff at the SCLC knew that Dr. King's wife loved to listen to speeches of his recordings and people often sent them to SCLC. And so they forwarded it to Coretta Scott King, who opened it, unawares of what was inside. And that's how Martin Luther King got written confirmation that he was being surveilled. But this horrific story obscures that our government and the predecessor to our government, the British government, have been watching other people who they consider to be dangerous throughout history. And so, I'm not just talking about the civil rights leaders of the 20th century, although if you name one, name one, the chances are not good. The chances are almost certain that they were surveilled either by the FBI or the NSA. So, MLK, Whitney Young, Muhammad Ali, Cesar Chavez, Fannie Lou Hamer, W.E.B. Dubois, Marcus Garvey, you name a leader they were watched, but it's so much older than that. And so, if you think of our nation's founding there's really two stories we tell, right? There's one story about the Pilgrims. And more recently, there's a much more sober story about about slavery. And so if you look at the Pilgrims, the storybook story that elementary school kids learn is that the Pilgrims didn't have a good life in England and so they came to the United States, or they came to what were then the colonies in America. The reality is much darker. Queen Elizabeth I perceived the English separatists we now know as Pilgrims to be a threat to her reign. She also was actually particularly focused on Catholics, and she built a network of spies and she paid her subjects to tell on Catholics who were practicing the religion and to turn in English separatists, and gave them money for doing so. James I, I believe, also did this and, in fact, may be better known for this practice. Queen Elizabeth had herself painted, at the end of her reign, in a gown embroidered with human eyes and ears to communicate to her subjects that ’I see everything, I hear everything.’ William Bradford, who came here on the Mayflower, was governor of Plymouth plantation, would later write in the seminal history of Plymouth plantation that they came here, not just because they weren't able to practice their religion, but because they were “beset and watched day and night,” at all times. The persecution was rooted in that watching, that surveillance. If you look at the other founding story of our country, the really original sin of our country, which is slavery, the way that enslaved people were controlled and held captive once they were brought to this country forcibly, was through surveillance, through violence and surveillance. And while a lot of people know about the violence, overseers were literally there to watch and control. If a captive managed to escape, they would be caught by what's known as late as a slave patrol. People would just be on the roads, looking for slaves, asking them for passes to see if they could justify them being on the roads at a particular time. If an enslaved person was out at night in the street, many cities and towns had what were called "lantern laws" that required them to carry a lantern with them at all times, so that people could see them. They would always be visible to everyone around them. And so this problem of surveillance having a disparate impact is the opposite of new, it is deeply old. And yet when we talk about technology, when we talk about surveillance, we talk about it as if it's totally new and as if it's pervasive, totally ignoring generations of disparate impact and generations in a very particular focus for deployments of surveillance.
Jen Carnig: This is fascinating. This is such rich history. I can't help but think about the moment we're in now. So you and I are speaking very early in the Biden presidency. So much was made of his desk in the Oval Office and how there's a bust of Cesar Chavez behind him. He's Catholic. We have a Black woman as our Vice President. And yet, we know, not everything is okay. And in fact, all the things you just outlined, are still here with us and nothing has changed. What is your agenda for this new administration and what can we, the royal we, regular folks, what can we be doing to be speaking out about this surveillance, and about this just deeply racist policy that you're describing?
Alvaro Bedoya: We'll give you two answers to that. The first has to do with Immigration and Customs Enforcement. And the second just has to do with how we look at security and how we look at surveillance and who those things work for in those concepts work for today. It is high time that policymakers, that immigrant advocates, that people who care about privacy and surveillance, that all of these groups see Immigration and Customs Enforcement, not just as a law enforcement agency, but also a surveillance agency, a domestic surveillance agency, and arguably the most powerful and dangerous domestic surveillance agency that exists today. Based on this idea that we started our conversation with, that immigrants are dangerous, ICE has justified and paid for vast invasions into American's privacy. If you live in one of the 50 most populous American cities, ICE pays a company called Vigilant to scan the license plates on public roads and create huge databases of the movements of cars in those cities and, as a result, of movements of everyone living in those cities. Increasingly, and since at least 2009, ICE has also been seeking out Departments of Motor Vehicles and requesting that they run face recognition searches on every single driver in order to find people to target with arrest, detention and deportation. And, just recently, ICE cut a contract with a company called Clearview, which scans every single photo on the Internet and uses that as the database of faces on which law enforcement can run its searches, ICE can run it searches. And so ICE used to collect data on some people at some times. Now ICE is increasingly paying a lot of money and spending a lot of resources on collecting data on everyone at all times --
Jen Carnig: Yeah.
Alvaro Bedoya: -- and securing access to data on everyone at all times. And yet, if you ask someone who cares about privacy and surveillance, who are you worried about? They might say the NSA, they might say my state police, they might say the FBI, rarely do they say Immigration and Customs Enforcement. And so, we need to wake up to the fact that ICE has extraordinary surveillance powers. That ICE, in many ways, has even more power than an agency like the FBI, for example. So, if FBI is a law enforcement agency also, has a lot of surveillance power and a lot of surveillance technology at its fingertips, but when FBI arrests you don't go in an FBI jail, you go on in a jail and detention facility controlled by a separate branch of the federal government. When ICE arrests you, it detains you in an ICE facility. It may contract with state and local jails and prisons, but, fundamentally you're under the control of Immigration and Customs Enforcement. What's more, although increasingly immigrants are put through the criminal justice system, more and more when they are put through the immigration system, they have a fraction of the rights that criminal defendants do. Now criminal defendants often don't enjoy those rights, but they are entitled constitutionally to a lawyer. They are guaranteed a lawyer, whereas immigrants are not when they go before immigration judge. And so in a number of ways, ICE has a power, ICE has an authority that FBI, NSA and many other agencies that come to mind when you think about surveillance, do not. And to answer your question about ICE and immigration as to what we can do about it, I think it's high time that state legislators understand that they can do something about this. Why? So much of the data that ICE siphons up through this network of contractors or directly comes from state sources. It may come from state DMVs. It may come from utility companies -- gas, water, electric companies -- that are regulated by states. And so state officials have the ability to say, 'Hey, ICE, if you want to come in here, you have to get a warrant. If you want to get my residents’, my citizens data, you need to go get a warrant.' And already you've seen States like New York, like California, New Jersey, pass laws protecting their residents’ data, their residents’ faces from ICE. And so I think that the key call to action here is not to Congress, although Congress definitely has a role. Now that Democrats control Congress, perhaps there is a possibility of conducting more oversight and reigning in this vast out of control bureaucracy and surveillance agency, but I think state officials have a real role to play here. And, more broadly, I think we need to recognize what an extraordinary advocate and expert in the field, Tawana Petty, says is that "surveillance ain't safety."
Jen Carnig: Yes.
Alvaro Bedoya: You know, surveillance is not safety. Surveillance, we now know, tends to shunt poor people, Black and Brown people, a whole lot of people who aren't at the center of power in our country, into our criminal justice system or into our system of jailing people and imprisoning people for long periods of their life. Instead, my hope is that the need in our country is so profound, both in terms of healthcare, education, my hope is that the money from these stimulus packages will not go into law enforcement, will not go into surveillance, but we'll go into investing into a public health infrastructure that works, into our education system and the schools that teach people that vaccines are real and climate change is real and racism is real, into job programs so that people, you know, don't get left behind, uh, as a result of all the transformations that are occurring from increasingly remote workplaces, increasingly digitized workplaces, increasingly decentralized workplaces. So that's my hope, and I get the impression that this administration is focused on meeting that pain and meeting that need. And I haven't seen too many calls for new domestic surveillance laws from the administration. So I am hopeful still and hopefully by the time folks listen to this, that is still the case, and hopefully will continue to be the case.
Jen Carnig: I'm so grateful that you brought us back to that place of hope. These are the kinds of issues, you know, that sometimes feel like we can't dig our way out of them that, that we can't imagine a new way forward, but of course, we can, and it's the work that you're doing to help us imagine what it could look like if we did not live in a surveillance society. If there could be even just very basic liberation, what we would see. And so I'm so grateful to the work that you and your colleagues do at the Center. You know, if there's just one final thought you'd like to leave us with, I would be grateful Alvaro, thank you. What's one thing you want listeners to take away from this conversation?
Alvaro Bedoya: I think it's really important for people to realize that this affects them. The combination of technology and secrecy and who that technology has been tested on and deployed on makes for a really toxic brew that affects everyone. And I know I've just spent, you know, a half hour or however long, telling you about how surveillance disproportionately affects some people and it's true, but what I'm trying to drive home is that this matters to everyone. So, let me tell a story about this. One day in I think it was April 2019, a young woman from Baltimore, I believe raised in Towson, Maryland, a college senior, woke up and she had 35 missed calls on her phone. And she starts to piece together that the government of Sri Lanka has identified her as a potential suspect in the terror attacks that occurred over Easter in 2019 in that country. And reporting would later reveal, the Boston Globe revealed that the Sri Lankan authorities had made a mistake in their face recognition system. They had identified this woman, Amara Majeed, probably off of her passport photo, visa photo, she had extended family in Sri Lanka, and her overall family had emigrated from Sri Lanka, I'm not sure when, but this was a case of a young woman who probably has never had any run-ins with the law who was identified as a suspect. And so the question is not with these systems, whether or not, you are undocumented or whether or not you are a suspected terrorist. The question is whether a secretive, opaque and often biased bureaucracy or algorithm thinks, you know, you look like an undocumented person or thinks you might be a suspected terrorist. And the way the systems misfire follows patterns that everyone should care about whether or not you have controversial political opinions, whether or not you come from the right side of the tracks as it were, the wrong side of the tracks. This is something our whole society needs to reckon with.
Jen Carnig: Alvaro Bedoya, Founding Director of the Center on Privacy and Technology at Georgetown Law, where he's also a Visiting Professor of Law and Director of the Federal Legislation Clinic. Alvaro, thank you so much for the work you're doing. Thank you for joining me today on Keep Me Posted.
Alvaro Bedoya: Thank you for having me, Jen, appreciate it.
Jen Carnig: I want to again thank Alvaro Bedoya, Founding Director of Georgetown Law School’s Center on Privacy & Technology, for joining me today. You can follow the Center on Twitter @GeorgetownCPT and Alvaro himself @alvaroMbedoya.
And thanks to you for joining us for this episode of Keep Me Posted. We’ll be back soon with more conversations with experts, organizers and movement leaders working at the intersections of tech, rights, race and justice.
Until then, please follow us on Twitter @KeepMePostedPod and rate, review and subscribe to us on Apple Podcasts.
Keep Me Posted is produced by Spitfire Strategies. Trendel Lightburn is our senior editor. Our production team is Gabrielle Connor, Maggie Cass and Nima Shirazi. To learn more, visit us at spitfirestrategies.com. The music is by Ui. I’m your host, Jen Carnig.
Thank you so much for listening. Stay well.