Observers often forget that surveillance offends not only privacy, but also the right to dissent. A recently defeated Illinois bill illustrates how First and Fourth Amendment rights intersect, by proposing to undermine the right to dissent not obliquely, but rather directly. That’s why EFF joined the successful fight to defeat this spying proposal.
The proposal, promoted by the City of Chicago, was embodied in SB 2562 and its companion bill, HB 4405. Theywould have authorized police to use surveillance drones to monitor peaceful protests without first securing a judicial warrant. Had the measure been adopted, it would have permitted police to use facial recognition technology to identify individual demonstrators photographed by drones even absent any suspicion of wrongdoing.
The defeated proposal would have rolled back a well-received state law passed in 2013 that led the country in protecting dissent from drone surveillance, and which enjoyed overwhelming bipartisan support. Illinois’ 2013 law sharply limits law enforcement from using drones, generally requiring agencies to first obtain a judicial warrant based on probable cause to suspect that a crime has been committed.
Warrants are important. They serve the crucial function of preventing police fishing expeditions against political dissenters, andthe politicization of public safety measures to pursue personal vendettas. Moreover, they’re not a burden for police to secure. That makes a warrant requirement a reasonable (yet increasingly threatened) way to protect vital (and increasingly threatened) rights on which democracy depends.
In sharp contrast, the defeated 2018 measure would have authorized drone surveillance of any gathering of more than 100 people for “legitimate public safety purposes,” which expressly include “assessing public safety vulnerabilities or weaknesses…or identifying possible criminal activity.”
As explained by the International Human Rights Clinic at the University of Chicago Law School, “Police already have the power to use drones in response to dangerous situations. What this legislation adds — and which current law explicitly rejects — is the active, continuous, and suspicion-less surveillance by drone of anyone and everyone at an event.”
Karen Sheley, Director of the ACLU Police Practices Project, said, “This is too much unchecked power to give to the police – in Chicago or anywhere.” The Chicago Sun-Times agreed, noting: “Unwarranted snooping, as any Chicagoan who knows our city’s history can attest, could become a real danger.”
Ultimately, the proposed 2018 measure invited the kind of historically documented abuses and recurring problems that flourish behind a continuing wall of executive secrecy.
Incidentally, but of crucial relevance to state policymakers: President Trump is widely known for bearing petty grudges. The propensity of the President to pursue personal piques represents precisely why our Founders required warrants as a precondition to justify any police search: without review by an independent auditor, the executive branch is too prone to act arbitrarily. That’s why due process and access to justice are so important.
Beyond President Trump, even federal oversight bodies have been recently implicated in politicizing national security secrets. Closer to home, the Chicago Police Department (CPD) has also spied on political groups not only in the past, but also more recently.
Just two years ago, the CPD was caught spying for years on peaceful local dissenters including “union members, anti-Olympics protesters, anarchists, the Occupy movement, NATO demonstrators and critics of the Chinese government. And it has continued to [monitor them], according to…records….which the police department fought to withhold.”
Political grudges should not be enough to trigger surveillance by legal authorities.
Molly Armour, a Chicago attorney whose clients include grassroots activists facing police investigations based on their speech, explained that “Surveillance stifles dissent. And that’s dangerous for all of us.” And as explained by local activist Claude Walker in his letter to the editor:
“Giving City Hall or cops the right to dispatch drones to protests…without warrant – makes Red Squad tactics seem quaint….This technology has developed faster than our ability to use or regulate it….[L]awmakers should err on the side of privacy in drone laws.”
The “Red Squad” was the Chicago police unit that spied on political dissent for much of the Twentieth Century.
Fortunately, advocates of free speech and privacy defeated the 2018 proposal. While the Illinois House and Senate each approved a version of this bill, the state legislative session expired on May 31 without reconciling their conflicting versions.
Illinois has retained its leading protections of dissent from drone surveillance for this year, but this struggle will likely recur. Fortunately, local grassroots allies including Lucy Parsons Labs and the Chicago Committee to Defend the Bill of Rights—both of which are members of the Electronic Frontier Alliance—are monitoring the situation. If the City of Chicago persists in trying to undermine constitutional rights by seeking more expansive powers to spy on demonstrators using surveillance drones without any basis for suspicion, we look forward to responding by raising the alarm.