by Rand Paul
You might laugh, but imagine what life will be like once facial recognition invades every sphere of life. Frankly, I would have guessed that cameras in the bathroom would have been one of the last, not the first, areas of privacy invaded.4
How is this social credit system working in China? Liu Hu, a journalist in China, was arrested, fined, blacklisted, and to top it off named as a “Dishonest Person” by the Supreme People’s Court. His punishment? He was banned from flying and traveling by train and also forbidden from buying property.
Can you get off the list? Maybe. It’s kind of like the “no fly” list. No one tells you if you are on it until you try to fly, and it’s like pulling teeth to get off the list. Remember when the late Ted Kennedy found out he was on the “no fly” list? Like most violations of civil liberties, the Chinese government presumes guilt first and it’s your responsibility to try to prove your innocence. Of course, you must suffer the punishment while trying to prove your innocence.5
Facial recognition company Megvii boasts that it will “build the eyes and the brain” for the Chinese government and allow the police to obtain powers “beyond what is humanly possible.” The goal is not only to be able to facially recognize China’s billion and a half citizens but to be able to predict crime before it occurs. The system will be fully implemented by 2020, with the objective of making it “difficult to move” for those declared to be “untrustworthy.”
Sounds like science fiction? Well, it was . . . until it became reality.6
Philip K. Dick foresaw the coming of “PreCrime” in his 1956 short story “The Minority Report.” Steven Spielberg adapted it for the big screen in 2002 as American politicians were clamoring to sacrifice freedom for the hope of security in the wake of the 9/11 attacks.
Minority Report is set in the year 2054. The government has conscripted three clairvoyants, called “pre-cogs,” that can predict crime before it happens. A PreCrime unit gets leads from the “pre-cogs” and arrests people before they commit crimes. Crime becomes a relic of the past.
For the public to acquiesce to the criminal arrest of people before they actually commit a crime requires the acceptance that, at some level, we do not possess free will but are slaves to a preordained or determined future. Minority Report raises the question: Is there only one future ahead of us that cannot be altered by our will?
Some have argued that Minority Report is not unlike our real-life attempts to preempt terrorist acts. More and more in America, we are convicting people not of actual crime but of “conspiring” to commit a crime that never occurs.
The Mueller investigation of “Russian collusion” in fact has led to dozens of indictments for the “crimes” of falsely testifying about activities that themselves were not really crimes.
In an article for Slate, David Edelstein recognizes the parallels between Dick’s science fiction and the zeal of today’s prosecutors. He writes, “In some ways the certainty that PreCrime feels with regard to their convicting the right person may exceed our current certainty when our government convicts individuals of ‘conspiracy’ to commit a crime that we are not always certain they will commit or a crime that the government has conspired to encourage them to commit.”
Edelstein’s response to the movie’s central question, though, is worrisome:
“Would you surrender a slew of civil liberties for a world without crime? Assuming that the right people were always jailed for the right reasons, I’d think about it long and hard.”
Edelstein’s acquiescence to the idea that all would be good “if the right people were jailed” begs the question: If no crime is ever committed, could we ever be certain that a crime would have been committed? In what world could it be just to imprison a person for something they never did, but might have contemplated?7
Writers of each successive generation ask if we are there yet. Is 1984 here? Are we now arresting people based on the prediction that they will commit a crime?
Orwell tries to answer this question:
“I do not believe that the kind of society I describe necessarily will arrive, but I believe (allowing of course for the fact that the book is a satire) that something resembling it could arrive. I believe also that totalitarian ideas have taken root in the minds of intellectuals everywhere, and I have tried to draw these ideas out to their logical consequences.”8
Do we already live in the 2054 world of Minority Report? Stephen Carson argues, in a way, yes: “More and more the State makes crimes of actions that don’t cause any harm, but might. Drunk driving, an improper paperwork trail for a large transfer of money, violation of any of a multitude of gun purchasing regulations. The point is no longer merely to punish the wrongdoer, but to prevent the crime from happening in the first place.”
Minority Report, as Carson writes, demonstrates “the injustice of a ‘justice’ system that punishes not for actual crimes, but for ones that are yet to be committed . . . the ultimate ‘tradeoff’ of liberty for security.”9
A perfect example of this is the metastases of surveillance and traffic cameras in America’s urban centers. While big-government liberals love them (especially the Democrat mayors in our major cities), these snooping eyes disproportionately wreak havoc on the lives of the poor and minorities today.
It’s the poor person whose life spirals out of control when a ridiculously expensive speeding ticket from a traffic surveillance camera arrives in the mail, goes unpaid, doubles and triples, and then results in their car being booted or impounded. Now that person cannot get to work. And the spiral continues. Worse yet, in many cities you are jailed for nonpayment of fines.
My wife, Kelley, and I know firsthand how draconian some of these traffic fines are. She parked outside of our D.C. apartment one night, and set the alarm early so she could move it. Not early enough. It was being towed away as she burst out to the street the next morning. She went online to pay the $400 in tickets and towing fees, only to discover that apparently we had gotten a speeding ticket from a traffic surveillance camera months before. (Yes, I was driving.) The ticket had been mailed to our former apartment and not forwarded . . . so it had doubled and tripled for nonpayment. Now we owed $700. She was furious and decided to go down to the DMV and fight.
She described her experience that day in a speech she gave as part of her advocacy work for criminal justice reform. In it, she wrote:
The Washington, DC, DMV is an interesting place, not that I’m recommending it—but I did learn a lot during my six hours there. As I waited in the large room filled with people waiting for our numbers to be called, I became conscious of the fact that I could pay my fines and fees—and most of the other people there probably couldn’t, not without serious difficulty anyway.
My number was called, and I went in with four others to a small room with an adjudicator. We were brusquely ordered not to talk and to silence our phones. I sat there and listened to a woman in her seventies, who had her car towed like I had, explain that she had been helping a friend get home after her release from the hospital for heart surgery. She was only parked for a few minutes as she helped her friend to her apartment.
The lady tried to show release papers from the hospital to make her case. She also said that she was on a fixed income and would have great difficulty paying the costly fines. The adjudicator refused to look at the papers. “Unless you have a notarized letter from the owner of the apartment complex then your ticket and towing fees still stand,” she said flatly. As she walked past me, the look on that poor lady’s face broke my heart.
The next person was an immigrant from Nigeria. He had a costly ticket for making an illegal left-hand turn—recorded by DC’s ubiquitous traffic surveillance cameras. He spoke with a heavy accent and the adjudicator was having trouble understanding him. The man kept saying the word “con” while pointing at the grainy image on the screen captured by the surveillance camera.
Finally, the person next to me bravely spoke up. “Ma’am,” he said, “maybe you could enlarge th
e image. He is trying to show you something.” She did, and suddenly we could all see what the young man was trying to show her: the entire left-turn lane was filled with traffic cones. He had no choice but to turn from the lane he was in. The adjudicator told the man his ticket was waived. We all broke into spontaneous smiles and subtle but giddy high-fives in support of our fellow beleaguered motorist. “Finally somebody is getting justice in this place,” I muttered to the guy next to me. “Victory against the man!” he said as he grinned back.
But seeing the relief on the young man’s face as he walked out made me angry at the unfairness of excessive tickets for minor violations. $200 might as well be $2,000 for someone who is barely getting by. Imagine it being doubled or tripled.
I submitted my apartment lease and copies of utility bills to prove that I didn’t know about the speeding ticket and got my fines reduced from $700 to $500, but at that point, it barely mattered. All I felt was a searing awareness of what $500 meant to me versus the other people in that room. He might lose his car over $500. She might not be able to pay her rent. And so the spiral begins.
In many cities, you go to jail for nonpayment of traffic tickets. Surveillance cameras and excessive fines for minor violations are truly big government at its worst, because they hurt vulnerable people the most.
NPR writes, “To understand some of the distrust of police that fueled the protests in Ferguson, [Missouri,] consider this: In 2013, the municipal court in Ferguson, a city of only 21,000 people, issued 32,975 arrest warrants for nonviolent offenses, most of which were driving violations.”
And it goes beyond the “crime” of traffic violations. Despite resistance from libertarians on the left and the right, some worry that PreCrime is already here. In Chicago, the police have installed a crime-predicting computer algorithm that they used recently to deploy a large gang raid. This PreCrime software compiles a Strategic Subject List (SSL) that reviews personal data to come up with a “danger rating.”
Karen Sheley of the ACLU responds: “There’s a police database that’s populated with secret information, and people can’t challenge the accuracy of it.”10
Simon McCormack, also of the New York Civil Liberties Union, writes: “We are taking one step closer to the dystopian world of Minority Report without any discussion of the serious privacy concerns that are implicated, [when we install] controversial advanced cameras, license plate readers, and facial recognition technology in New York’s airports and other transportation hubs . . . [and] sensors and cameras at ‘structurally sensitive’ points on bridges and tunnels.”
According to McCormack, technological advances are allowing for “a transformative surveillance system—one that has the potential to put thousands and thousands of people’s images and data in a massive database that could be easily misused by the government in ways we haven’t even imagined yet.”
The danger in having the government collect so much data is, according to McCormack, made worse in that it’s “not yet clear how the information will be stored and who will have access to it.”
McCormack also worries that facial recognition technology often misidentifies minorities. “A 2012 study, highlighted in the Atlantic, for example, found that a facial recognition algorithm failed to identify the right person nearly twice as often when the photo was of a black person.”11
Slowly but surely, we are seeing more examples of “PreCrime” prosecutions in America. Take, for example, license plate readers. The horrendous case of Robert Harte bears repeating. Robert and his wife often shopped at a gardening store in their neighborhood. Unbeknownst to the Hartes, the police were monitoring cars in the parking lot as part of a marijuana investigation. The police were recording the license plates of all the customers.
The Hartes did not hear about this investigation by a polite knock on the door but rather when a SWAT team burst into their home with semiautomatic weapons drawn to interrogate Harte, his wife, their seven-year-old daughter, and their thirteen-year-old son. As McCormack describes it, “Harte was held at gunpoint for two hours while cops combed through his home. The police were looking for a marijuana growing operation. They did not find that or any other evidence of criminal activity in the Hartes’ house.”
McCormack, on the ACLU website, writes worriedly: “It’s also important to understand that these technologies have a way of creeping towards ubiquity. It starts with a camera here or a license plate reader there, but soon they are everywhere.”12
In China, though, such concerns over civil liberties aren’t even considered. What better place to develop surveillance technology than in a “surveillance state.” So far, more than forty Chinese cities have installed SenseTime’s facial recognition software. Fortune reports that this technology “has helped Guangzhou police identify more than 2,000 suspects, arrest more than 800 people, and solve close to 100 cases since it was deployed in the city last year.”
Both SenseTime and Megvii act as if they are absolved of any abuses of civil liberties that the government may inflict. Luciano Floridi, a digital ethicist, doesn’t believe the companies should get a free pass: “The justification of saying ‘Oh, we’re just producing a tool’ has not worked since we started sharpening stones a long time ago.”
The Chinese government maintains, like every government anywhere claims, that the technology is just about stopping violent crime. Maya Wang from Human Rights Watch disagrees: “The intention of these systems is to weave a tighter net of social control that makes it harder for people to plan action or push the government to reform. With ever more intelligent cameras, who will watch the watchers?”13
G. Clay Whittaker writes of how China has taken “PreCrime” to a new level: “China has a new strategy in fighting crime, ripped from science fiction and hastily pasted at the top of the list of paranoia-inducing concepts. It’s called pre-crime. It goes further than sting operations, counterterrorism, or any other government action to preempt criminal activity ever before.”
The China Electronics Technology Group is now gathering and organizing big data on everything they can get their hands on, from employer data to social media data to consumer purchases, all ostensibly to analyze and predict crime or terrorism before it occurs.
Every text or email is retrieved and stored. Every individual’s daily travel pattern is captured by GPS and recorded. Critics of the government get special attention. No detail of your life is too insignificant. Do you drink alcohol? How much? Do you smoke? What brand?
As Whittaker puts it: “It’s a scary thought, especially when you consider that the main target of Chinese pre-crime efforts wouldn’t be ‘terrorists,’ murderers, rapists, or child molesters, but rather dissidents of every shape and size. By publicly announcing their intention to build an intelligence network that can predict crimes, China just took a step closer to all the thought-policing dystopian nightmare scenarios we’ve always worried about as members of a modern society. And they want people to know it.”14
Afterword: Finding Common Ground
Freedom brings people together.
—Ron Paul
I don’t hate Bernie or Alexandria Ocasio-Cortez. Who wouldn’t admire Alexandria’s winsome smile and earnestness, however misplaced? And I, for one, am envious, not at all critical, of her spontaneity with dance. That being said, socialism as an economic and political system is an avoidable disaster. It’s likely too late to convince Bernie or Ocasio-Cortez of the miracle of Adam Smith’s invisible hand or the unparalleled prosperity that comes with the division of labor. But it’s never too late to find common ground.
In fact, I’ve worked many times with Bernie Sanders and other members of the progressive left. While I wouldn’t want to characterize my friend Senator Ron Wyden of Oregon as a socialist, I think he would accept the label progressive. He and I have worked together on so many bills protecting privacy and civil liberties that I’m convinced we largely think alike on issues of privacy and the Fourth Amendment. Wyden jokes that he and I make up the
Ben Franklin Caucus, the senators who believe that if you trade liberty for security, you may wind up with neither.
I’ve worked with Senator Kirsten Gillibrand on achieving justice for members of our military who have been the victim of sexual assault. Likewise, I’ve worked with Senators Booker, Leahy, and Harris on criminal justice reform. The passage of the First Step Act, the first meaningful criminal justice reform law in decades, was a true bipartisan achievement that occurred under President Trump and a Republican-led Congress.
My wife, Kelley, advocated for the First Step Act and was a vocal presence in the media encouraging the majority leader to bring the bill to the Senate floor. Kelley argued for First Step’s passage on national and Kentucky television and radio shows, wrote op-eds, gave speeches, and personally lobbied senators, all on a volunteer basis. She was in the media so often in the months leading up to its passage that the president called me to let me know that she was “the real star in the family.”
Just a few weeks after it was signed into law, the First Step Act was freeing Americans such as Matthew Charles. In 1996, Charles was sentenced to thirty-five years in prison for selling crack cocaine to an informant—under sentencing laws that penalized one gram of crack as if it were equivalent to 100 grams of powder cocaine. Powder cocaine was the form of the drug predominantly abused by whites, while the cheaper crack was the type abused primarily by blacks. The Clinton crime bill codified this sentencing disparity, resulting in the disproportionate and unjust incarceration of tens of thousands of African Americans.
While incarcerated, Matthew Charles helped other inmates earn their GEDs and organized Bible studies. He completed thirty Bible correspondence classes, as well as college courses. He became a law clerk to help other prisoners understand the legal system, helping read legal documents to those who were illiterate to shield them from humiliation. After serving twenty-one years, he was released in 2016 under the 2010 changes to the sentencing guidelines that reduced the disparity in crack versus powder cocaine.