Commentary: The state of privacy

June 17, 2021 6:10 am
A close up of an eye being read by a biometric scanner

How much privacy are you willing to pony up in exchange for convenience? (Ian Waldie | Getty Images)

When I moved to New Hampshire, one of the first things I was told about the state was that it cared about privacy. New Hampshire was even a national leader on privacy. That was just a few years ago. My how things change.

New Hampshire is in the grips of an identity crisis, exemplified by the moral and ideological controversies that have erupted this legislative session. Its wavering commitment to privacy can easily be overshadowed by the more headline-grabbing aspects of this crisis. However, complacency about privacy can be the equivalent of forsaking it in this digital age. New Hampshire needs to be more diligent lest we wake up to find privacy a fleeting memory.

Let’s talk real life for a minute. I recently made the grand switch from an Android to an iPhone. A big reason for my swapping one goliath tech company for another was privacy. The more you learn about Big Tech, the more you want to move off-grid. Unable to do that, you have to choose the lesser of evils, and Apple seems more pro-privacy than the others, though it is a pretty low bar.

So, there I was at the kitchen table with my and my mother’s new iPhones. We opted to set up hers first, and even devoid of any tech savviness, we are able to follow the steps. Early on in the process was a prompt asking if my mother wanted to set up facial recognition to open her phone.

Here is a phone that caters to personal privacy and yet it is inviting my mother to abandon her privacy at the outset. In my mother’s hand was the existential question of nearly all tech: How much privacy are you willing to pony up in exchange for convenience? Which do you prefer more, because when it comes to technology it’s almost impossible to have both.

For my mother, it was a relatively easy decision. She took convenience. It took mere seconds to set up facial recognition on the phone, and soon she was off and running with her new phone that contained data on every feature of her face.

Facial recognition terrifies me, but I’ll admit that it terrifies me less on an iPhone. Why? Because the iPhone requires you to opt in to facial recognition. I was given a choice. And in my case, I chose privacy over convenience. I’ll endure the time it takes to type in a security code in order to keep my phone ignorant of every angle and attribute of my face.

When the government uses facial recognition, there is no opt-in button. The government does not send out a postcard that says, “We would like to use facial recognition in your town or in your state. Are you OK if we use your photographs in our facial recognition system?”

The government does not conduct a survey to see if the public is comfortable with law enforcement using facial recognition technology to comb through the DMV database or to sift through security camera footage.

There is no law in New Hampshire that requires the public to be notified should law enforcement set up facial recognition surveillance, nor are there state laws currently restricting the government’s usage of this technology.

This is not for a lack of opportunity mind you. For the past two years, the New Hampshire Legislature has taken up legislation to ban or restrict the government’s use of facial recognition technology. Last session, House Bill 1642 was voted ought to pass by the House Executive Departments and Administration Committee, 18-2, and that recommendation was endorsed by the full House on a voice vote. The bill then died in the House Judiciary Committee in large part because of law enforcement objections and the endorsement of those objections by certain legislators.

This session, HB 499 made it out of the House and over to the Senate, but as a significantly watered-down version of HB 1642. It subsequently died in the Senate.

While not related to facial recognition, there was a separate bill this session that would have simply restored the Legislature’s original intent with a 2006 privacy statute related to government surveillance of public roadways. A court neutered the 2006 statute in a court case in 2019. The bill passed in the House, but it too was killed in the Senate.

There are abundant reasons why the government’s use of facial recognition scares me. Perhaps the most alarming reason, and the one that I would argue should be a case-closed argument against it, is its racial bias. Across the country there have been multiple examples of Black men being wrongfully arrested because facial recognition misidentified them.

And it is not random that it is Black men who are wrongly arrested in these cases. Facial recognition is disproportionately inaccurate in identifying people of color. It also disproportionately misidentifies the elderly, the young, and women.

“Misidentifies” does not mean that facial recognition fails to identify a person. It means the technology identifies a person as someone they are not. Cut to police showing up at an innocent person’s house and arresting them.

This is why in the last year, as our country has grappled with police misconduct and advocated for racial justice, we have seen more jurisdictions ban the government’s use of facial recognition. Nearby, Boston and Portland, Maine, have both banned law enforcement’s use of this technology. Amazon has made a corporate decision to no longer sell its facial recognition technology to law enforcement.

Putting aside its inaccuracies, facial surveillance is also inherently problematic for privacy. It is the equivalent of walking out your front door with a GPS chip embedded in your skin that only the government can track and wearing a T-shirt with a blown-up picture of your driver’s license on it, with all the relevant information displayed.

The question here is not unlike the question my iPhone posed between privacy and convenience. Except when it comes to government, the question is do we want law enforcement to have the convenience at the expense of our privacy?

There is no doubt that erecting surveillance cameras across the state, equipped with facial recognition technology, would be mighty useful to law enforcement. But is that the state we want to live in?

China reportedly has 600 million surveillance cameras across that country. Its “Skynet” system, which is its network of cameras and the corresponding technology, is reportedly capable of identifying every Chinese citizen in a single second. Recall that China has 1.4 billion people. This is the world of surveillance driven by artificial intelligence.

Ask yourself this: If a window popped up on your cellphone that said, “The government would like access to the geolocation data on your phone,” would you grant such access? The iPhone routinely asks me this with regard to apps tracking my physical location and digital use. And yet, I’m guessing we would flinch a little more if it were the government requesting access.

Or what if when the iPhone asked if you wanted to set up facial recognition, there was a second question that said, “Do you mind if we share the specs on your face with the government?” I know I would flip out. Even if we are doing nothing wrong and live boring lives, there is something unnerving about the government tracking us.

New Hampshire was a leader when it came to 20th-century privacy, which was about our physical property. New Hampshire is lagging behind when it comes to 21st-century privacy, which is all about our data.

This includes the separate but related question of our privacy in relation to tech companies, as opposed to the government. In 2019, Maine enacted a law that requires internet service providers to get their customers’ permission before collecting, sharing, or selling their data, including search histories. In essence, the law requires ISPs to do what iPhones do in requiring customers to opt in to a privacy invasion. New Hampshire had the opportunity to enact similar legislation last session but opted not to.

I would argue that Granite Staters are eager to see their 21st-century privacy protected by virtue of more than 80 percent of voters voting in support of a constitutional amendment in 2018 that related to informational privacy rights. That amendment needs legislation to flesh it out. Our Legislature has not heeded the message.

When it comes to our phones, we’re asked to choose between privacy and convenience. When it comes to government, we are rarely given a choice. The government too often chooses for us between its convenience and our privacy. Just because a technology would make life easier for the government does not mean that it should be permitted.

As Granite Staters grapple with what kind of state they want New Hampshire to be, particularly looking ahead to next year’s mid-term elections, I hope privacy is one of the topics they consider. As a state that claims to cherish liberty, we should reassert our commitment to privacy. Privacy includes the liberty to go about our lives without being surveilled, physically or digitally.

If we do want to be a state that puts a premium on privacy, we have our work cut out for us.

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