Facial Recognition Affirmative - JDI 2015

7/25/2019 Facial Recognition Affirmative - JDI 2015

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Facial Recognition 1ac


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1ACFRT


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PlanPlan: The United States federal government should

substantially curtail its domestic facial biometric surveillance


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!"clusion

Contention 1 is e"clusion

FRT has become an instrument of #o$er that creates

ontological ga#s bet$een #o#ulations and functions under a

#aradigm of security based bio%#olitics&ember 1'(Sarah Kember is a writer and academic. Her work incorporates newmedia, photography and feminist cultural approaches to science and technology,Gender Estimation in Face ecognition !echnology" How Smart #lgorithms $earn to%iscriminate, &o'ember ), *)+, pg. -,http"//static+.+.s0spcdn.com/static/f/1)12/*343++/+4241+))*)1/Kember56F1.pdf7token8a9%6:;a2a%accessed /*/+2A//9S

@ac0ue =enryBs =hotoFC! pack came in to use in the +31)s and consisted ofphotographic images of D'e features (hair and forehead, eyes, nose, mouth, andchinA mounted on card.+* He included a male and female database butestablished what he claimed was a uni'ersalgenderlessfacial topography. !hiswas actually deri'ed from a norm, a young white male that face recognitionsystems continue to use, but with the aim, for e:ample, of restricting access tocertain areas based on genderI or collecting 'aluable demographicsI such as thenumber of women entering a retail store on a gi'en day.I+!he segue fromdisciplinary to biopower is , for Foucault, contingent on the increasing use ofdemographics and statistics that orient go'ernance more towards the populacethan the indi'idual.+ Face recognition systems demonstrate both forms of

#o$er and perhaps e'en the shift from one to the other.!his becomes clearer aswe track back from the biopolitical uses and applications of face recognitiontechnology to the disciplinary design and architecture of the technology itself. Koray?alci and Jolkan #talay present two algorithms for gender estimation.I+2 !heypoint out that the same algorithms can be used for dierent face speciDc tasksIsuch as race or age estimation, without any modiDcation.I+ Cn the Drstalgorithm, the training face images are normaliLed and the eigenfaces areestablished using =9#.+1 =9# is described here as a statistical techni0ue fordimensionality reduction and feature e:traction.I+4 !he performance of thesystem is impro'ed by the subse0uent use of a pruningI algorithm, whichidentiDes statistical connections e:traneous to gender (race or ageA estimation and

deletes them. #fter deletion, the system is re-trainedI and the pruning is repeateduntil all the connections are deleted.I+3 # performance table is produced,showing the relation between each iteration of pruning, the percentage of deletedconnections, and the accuracy of the system. !he accuracy of gender estimation in?alci and JolkanBs e:periment actually diminishes after the eighth iteration, albeitby only a few percentage points, allowing them to claim that the system is stable.

!hey maintain that pruning or the deletion of statistical connections impro'esgender estimation not in a linear or absolute sense but by enhancing the process of
http://static1.1.sqspcdn.com/static/f/707453/23986911/1385871002407/Kember_MF7.pdf?token=aCDMxWa5aZ54giSsrZsP%2BJRBRFs%3Dhttp://static1.1.sqspcdn.com/static/f/707453/23986911/1385871002407/Kember_MF7.pdf?token=aCDMxWa5aZ54giSsrZsP%2BJRBRFs%3Dhttp://static1.1.sqspcdn.com/static/f/707453/23986911/1385871002407/Kember_MF7.pdf?token=aCDMxWa5aZ54giSsrZsP%2BJRBRFs%3Dhttp://static1.1.sqspcdn.com/static/f/707453/23986911/1385871002407/Kember_MF7.pdf?token=aCDMxWa5aZ54giSsrZsP%2BJRBRFs%3D


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classiDcation itself. For Georey ?owker and Susan $eigh Star, classiDcation is alargely in'isible , increasingly technological, and fundamentally infrastructuralmeans of sorting things out.I*) Ct is an instrument of power-knowledge that isproducti'e of the things it sortsthings such as faces that are by no meansunambiguous entitiesI that precede their sorting.*+ !he e:istence of a pruning

algorithm that renders faces less ambiguous testiDes to their elusi'eness, or theirinherent resistance to classiDcation as one mode of representationalism. Ct would,perhaps, be going too far to suggest that there is a crisis of representationalism inappearance-based face recognition systems. Howe'er, their designers andengineers are clearly aware that faces are things that resist depictionI** becausethey are comple: and multidimensionalI* and not uni0ue, rigidI obMects.*

!he ad'antage of a more dynamic and relational approach to the production offaces in face recognition technology would include recogniLing representationalismas a claim, a defensi'e manoeu're in the face of facesB non-essential ontology anddynamic co-e'olution with technological systems. Still, this defensi'e manoeu'rematters in a double sense" it is both meaningful and material, reproducing normsfor e:ample, norms of gender in a machine that is learning to classify, sort, anddiscriminate among the populationbetter than it could before. Cf this is a last pushto representationalism, it is one that reinforces it rather than shows it the door.Face recognition technology u#holds a belief in the e:istence of ontologicalga#s between representations and that which they represent. Ct also re-producesthe norms of nineteenth-century disciplinary photography e'en as photographybecomes allied to the security-based biopolitics of computational 'ision and smartalgorithmic sorting. Cn this sense, Kelly Gates is right to argue that new 'antagepoints can underscore old 'isions as well as old claims to unmediated 'isuality.*2$ike her, C 0uestion the autonomy of face recognition systems without denying that,in conMunction with human input of 'arious kinds, they enact what ?arad callsagential realism,I generating both categories and entities by cutting and sortingmale from female , black from white , old from young.* Cn a conte:t in whichsecurity systems are fully integrated with those of marketing, these particularepistem-ontologies intersect in predictable ways with the category ofcriminal/citiLen-consumer.*1 Since the e'ents of 3/++, the stereotypical face ofterror (gendered, racialiLedA has been perhaps the most represented and mostelusi'e of all. Cf the problem, from a system point of 'iew, is that the categories leakand the classiDcation structure does not hold, the solution is to reinforce it bypruning it.!his process of agential cutting and sorting strengthens statistical groupsby deleting connections between them and is precisely the point of a possibleinter'ention, the means by which the biopolitics and ethics of computational 'isioncan be intercepted in order to make a dierence .

Scenario 1 is (io#o$er


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(iometrics re)ect the management of lifebiometrics a##ear

in multi#le as#ects of our daily lives and re#resent the

governing of lifeA*ana and (eer 1+(?tihaM #Mana is $ecturer in 9ulture, %igital Humanities and9reati'e Cndustries at KingBs 9ollege $ondon N %a'id ?eer is Senior $ecturer in

Sociology at the Oni'ersity of Pork, OK, 6ay +*, *)+, !he ?iopolitics of ?iometrics"#n Cnter'iew with ?tihaM #Mana http"//theoryculturesociety.org/the-biopolitics-of-biometrics-an-inter'iew-with-btihaM-aMana/ A //9S

%?" Pour book focuses upon the Qbiopolitics of biometricsB. !his allows you to e:plorethe implications of forms of measurement for the politics of life and bodies. ;henyou e:plore these connections you introduce some interesting conceptualresources. 6ichel Foucault plays a central role in your analysis here. ;hat doesFoucaultBs work oer in terms of the on-going analysis of new biometrics7 ?#" Cf weconsider the literal meaning of biometrics, it is all about measuring life, measuringthe uni0ueness of the QbioB and its identity. ?iometrics as such pro'ides us with a

'ery 'alid e:ample of what Foucault terms QbiopowerB, that is, the form of powerbeing directed at the biological e:istence of indi'iduals and populations, at man-as-species-body.!he management of life, which Foucault refers to as QbiopoliticsB isperformed through a 'ariety of means and techni0ues of which biometrics is ane:ample. ;e can see this unfolding in a 'ariety of domains and spaces includingborders, citiLenship and immigration policy, social ser'ices, healthcare and manyother areas of go'ernance that are increasingly reliant on biometrics for managingand controlling the life of the li'ing. FoucaultBs concepts pro'ide us with pertinentand 'aluable points of departure for analysing the ways in which biometrics isimplicated in processes of categorisation and classiDcation which allow the(subAdi'ision of the population into manageable groups according to their le'el of

risk and identity proDles. 9rucially, Foucault identiDed the parado:ical aspect ofbiopolitics" the same techni0ues that are used to protect and enhance certain li'escan be used to endanger and obstruct others. #nd this is something we can clearlyobser'e in the politics and policies go'erning asylum, immigration and citiLenship.

!hroughout this book, C stage an encounter between the Dgure of the QcitiLenB andthat of the Qasylum seekerB by way of elucidating this parado:ical yet constituti'ebiopolitical relation between the two, a relation that is increasingly being mediatedthrough biometric technology. ?ut instead of relying e:clusi'ely upon a Foucauldianconceptualisation of biopolitics, C e:tend my analysis to other rele'ant theoristsincluding #gamben and ose in order to achie'e a more nuanced, comple: andcritical approach to the biopolitics of biometrics. Oltimately, the concept of

biopolitics becomes here both a method of analysis as well as a subMect of en0uiry.


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Facial recognition s#eci,cally e"erts the disci#linary #o$er of

the #ano#ticon#o$er stems from FRT-s ability to sort and

categori.e

/ray ' 06itchell, Sur'eillance and Society. Orban Sur'eillance and =anopticism"will we recogniLe the facial recognition society7I @@ for facial matching. From a clear face image, ethnicity can be identiDed with an error rate of+> and gender with an error rate of >. Onfortunately, Onited States law has not caught up with the technologyZs e:pansion. #nd as facial recognition becomes more present ine'eryday life, we are going to need new regulations protecting the anonymity of our faces, Must as we are protecting our cellphones and, hopefully, the metadata therein. Cf we donZt, wewill lose our ability to be anonymous R and e'en when weZre talking about identifying se: oenders, retaining some measure of anonymity is important. ;ould you really want to cast acontro'ersial 'ote or publicly protest in a world where your peers or the cops could track down your cheekbone pattern in seconds7 ;ith FacebookZs burgeoning databases as well as theF?CZs s &e:t Generation CdentiDcation system, itZs now easier than e'er to get access to a photo of a personZs face and turn it into a kind of Dngerprint on steroids, without them knowing.

;e need to Dnd a way to preser'e our anonymity , and fast. Fingerprints and % data are protected underOS

Supreme 9ourtlaw, pro'iding a possible precedent for face-prints. Cf a Dngerprint or % test is collected without due cause, it canZt be used in court as e'idence R it constitutes anunreasonable search and seiLure, outlawed by the Fourth #mendment. !he Supreme 9ourt is Must this week embroiled in debateo'er whether or not search and seiLure of social mediaand cellphone data should re0uire a warrant. ;hile we grapple with todayZs dominant technologies, we should also be looking forward to tomorrowZs, regulating the Fourth #mendmentZs

application to futuristic technologies like 9reepShield and Google Glass, which hasbanned facial recognitionfor now R but might not fore'er. $aws should allowus to control which businesses and go'ernment entities ha'e access to our facesand when . Cndi'iduals might opt in to facial recognition for interacti'e marketingcampaignsor to be tracked in a retail store, but choose to be left out ofunwarranted public go'ernment sur'eillance. # face-print should fall under thesame category as a Dngerprint R and be controlled Must as stringently .!he OS musttake this opportunity to gi'e citiLens a right to their own face-prints and an ability toopt out of any facial recognition not e:plicitly connected to acti'e criminalin'estigation .!his will regulate the technologyZs application before itZs too late to pre'ent a situation like a wrongful con'iction because of a facial recognition mistake.Ttherwise, the future gets dystopian 0uickly. !he door opens to a 'ersion of 9reepShield that runs on gossip or Pelp-like re'iews of people instead of a se:-oender database. (!hat

random guy you see in the bar7 Forget $uluR try Ysee you laterY.A Cndeed, a world without facial-recognition laws is a world without strangers. &ot being able to lie about height onTK9upid is the least of our worries.

/lobal #olitics2 alliances2 and economic interde#endence

means there is no ris7 of great #o$er $arRobb 1>,%ougU $ieutenant, OS &a'y. 6.#. from &a'y. &ow Hear this;hy the age of great power war is o'er.I=roceeding 6agaLine 6ay *)+* Jol. +4http"//www.usni.org/magaLines/proceedings/*)+*-)2/now-hear-why-age-great-power-war-o'er

!he *)th century brought seismic shifts as the global political system transitioned from being multipolar during theDrst ) years to bipolar during the 9old ;ar before emerging as the #merican-led, unipolar international order we

know today. !hese changes notwithstanding, maMor world powers ha'e been at peace for nearlyse'en decadesthe longest such period since the +4 !reaty of ;estphalia codiDed the so'ereign nation-state. ;hereas in years past, when nations allied with their neighbors in ephemeral bonds of con'enience, todayBs

global politics are tempered by permanent international organiLations, regionalmilitary alliances, and formal economic partnerships.!hanksin large part tothe pre'alenceof liberal democracies, these groups are able to moderate international disputesandpro'ide forums for nations to air grie'ances, assuage security concerns, and negotiatesettlements thereby making war a distant (and distastefulA option. #s a result, 9hina (and anyother global powerA has much to lose by outing international opinion, as e'idenced by its ad'ocacy of the recentSyrian uprising, which has drawn widespread condemnation. Cn addition to geopolitical and diplomacy issues,

globaliLation continues to transform the world.!his interdependence has blurred the lines
http://www.theguardian.com/profile/kyle-chaykahttp://www.theguardian.com/lifeandstyle/online-datinghttp://www.theguardian.com/lifeandstyle/online-datinghttp://www.creepshield.com/searchhttp://www.creepshield.com/searchhttp://www.creepshield.com/searchhttp://en.wikipedia.org/wiki/Facial_recognition_systemhttp://en.wikipedia.org/wiki/Facial_recognition_systemhttp://en.wikipedia.org/wiki/Facial_recognition_systemhttp://www.newsweek.com/2014/04/25/biometric-surveillance-means-someone-always-watching-248161.htmlhttp://www.newsweek.com/2014/04/25/biometric-surveillance-means-someone-always-watching-248161.htmlhttp://www.newsweek.com/2014/04/25/biometric-surveillance-means-someone-always-watching-248161.htmlhttps://www.eff.org/files/filenode/pender-FBI-Next-Generation-Identification-Overview.pdfhttps://www.eff.org/files/filenode/pender-FBI-Next-Generation-Identification-Overview.pdfhttps://www.eff.org/files/filenode/pender-FBI-Next-Generation-Identification-Overview.pdfhttps://www.eff.org/deeplinks/2014/04/fbi-plans-have-52-million-photos-its-ngi-face-recognition-database-next-yearhttps://www.eff.org/deeplinks/2014/04/fbi-plans-have-52-million-photos-its-ngi-face-recognition-database-next-yearhttps://www.eff.org/deeplinks/2014/04/fbi-plans-have-52-million-photos-its-ngi-face-recognition-database-next-yearhttp://www.dermalog.com/en/news/awards/Frost_Sullivan_2013.phphttp://www.dermalog.com/en/news/awards/Frost_Sullivan_2013.phphttp://www.dermalog.com/en/news/awards/Frost_Sullivan_2013.phphttp://www.extremetech.com/extreme/178777-facebooks-facial-recognition-software-is-now-as-accurate-as-the-human-brain-but-what-nowhttp://www.extremetech.com/extreme/178777-facebooks-facial-recognition-software-is-now-as-accurate-as-the-human-brain-but-what-nowhttp://www.extremetech.com/extreme/178777-facebooks-facial-recognition-software-is-now-as-accurate-as-the-human-brain-but-what-nowhttp://www.gsnmagazine.com/article/40157/new_secure_identity_biometrics_association_providehttp://www.gsnmagazine.com/article/40157/new_secure_identity_biometrics_association_providehttp://www.gsnmagazine.com/article/40157/new_secure_identity_biometrics_association_providehttp://www.theguardian.com/law/us-supreme-courthttp://www.theguardian.com/law/us-supreme-courthttp://www.theguardian.com/law/us-supreme-courthttp://www.theguardian.com/law/us-supreme-courthttp://www.theguardian.com/law/2014/apr/29/us-supreme-court-phone-privacy-police-seizureshttp://www.theguardian.com/law/2014/apr/29/us-supreme-court-phone-privacy-police-seizureshttp://www.theguardian.com/law/2014/apr/29/us-supreme-court-phone-privacy-police-seizureshttp://www.theguardian.com/technology/2013/jun/03/google-glass-facial-recognition-banhttp://www.theguardian.com/technology/2013/jun/03/google-glass-facial-recognition-banhttp://www.theguardian.com/technology/2013/jun/03/google-glass-facial-recognition-banhttp://www.washingtonpost.com/business/on-it/how-brands-are-using-facial-recognition-to-transform-marketing/2013/04/15/dcf3a7da-a483-11e2-bd52-614156372695_story.htmlhttp://www.washingtonpost.com/business/on-it/how-brands-are-using-facial-recognition-to-transform-marketing/2013/04/15/dcf3a7da-a483-11e2-bd52-614156372695_story.htmlhttp://bits.blogs.nytimes.com/2013/03/07/technology-turns-to-tracking-people-offline/?_php=true&_type=blogs&gwh=C11D9EF754DF5FAFBA32BC493F94E7BC&gwt=pay&_r=0http://www.nytimes.com/2013/08/21/us/facial-scanning-is-making-gains-in-surveillance.html?pagewanted=all&_r=1&gwh=1415AAC042094D11B1EF54FBFB84276D&gwt=pay&http://www.nytimes.com/2013/11/21/fashion/social-networking-App-allows-women-to-rate-men.htmlhttp://www.nytimes.com/2013/11/21/fashion/social-networking-App-allows-women-to-rate-men.htmlhttp://www.nytimes.com/2013/11/21/fashion/social-networking-App-allows-women-to-rate-men.htmlhttp://www.usni.org/magazines/proceedings/2012-05/now-hear-why-age-great-power-war-overhttp://www.usni.org/magazines/proceedings/2012-05/now-hear-why-age-great-power-war-overhttp://www.usni.org/magazines/proceedings/2012-05/now-hear-why-age-great-power-war-overhttp://www.usni.org/magazines/proceedings/2012-05/now-hear-why-age-great-power-war-overhttp://www.theguardian.com/profile/kyle-chaykahttp://www.theguardian.com/lifeandstyle/online-datinghttp://www.creepshield.com/searchhttp://en.wikipedia.org/wiki/Facial_recognition_systemhttp://www.newsweek.com/2014/04/25/biometric-surveillance-means-someone-always-watching-248161.htmlhttps://www.eff.org/files/filenode/pender-FBI-Next-Generation-Identification-Overview.pdfhttps://www.eff.org/deeplinks/2014/04/fbi-plans-have-52-million-photos-its-ngi-face-recognition-database-next-yearhttp://www.dermalog.com/en/news/awards/Frost_Sullivan_2013.phphttp://www.extremetech.com/extreme/178777-facebooks-facial-recognition-software-is-now-as-accurate-as-the-human-brain-but-what-nowhttp://www.gsnmagazine.com/article/40157/new_secure_identity_biometrics_association_providehttp://www.theguardian.com/law/us-supreme-courthttp://www.theguardian.com/law/us-supreme-courthttp://www.theguardian.com/law/2014/apr/29/us-supreme-court-phone-privacy-police-seizureshttp://www.theguardian.com/technology/2013/jun/03/google-glass-facial-recognition-banhttp://www.washingtonpost.com/business/on-it/how-brands-are-using-facial-recognition-to-transform-marketing/2013/04/15/dcf3a7da-a483-11e2-bd52-614156372695_story.htmlhttp://www.washingtonpost.com/business/on-it/how-brands-are-using-facial-recognition-to-transform-marketing/2013/04/15/dcf3a7da-a483-11e2-bd52-614156372695_story.htmlhttp://bits.blogs.nytimes.com/2013/03/07/technology-turns-to-tracking-people-offline/?_php=true&_type=blogs&gwh=C11D9EF754DF5FAFBA32BC493F94E7BC&gwt=pay&_r=0http://www.nytimes.com/2013/08/21/us/facial-scanning-is-making-gains-in-surveillance.html?pagewanted=all&_r=1&gwh=1415AAC042094D11B1EF54FBFB84276D&gwt=pay&http://www.nytimes.com/2013/11/21/fashion/social-networking-App-allows-women-to-rate-men.htmlhttp://www.usni.org/magazines/proceedings/2012-05/now-hear-why-age-great-power-war-overhttp://www.usni.org/magazines/proceedings/2012-05/now-hear-why-age-great-power-war-over


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between economic security and physical security . Cncreasingly, great-power interests demandcooperation rather than conict. !o that end, maritime nations such as the Onited States and 9hina desire open sealines of communication and protected trade routes, a common security challenge that could bring these powerstogether, rather than dri'e them apart (witness 9hinaBs response to the issue of piracy in its backyardA. Facingthese security tasks cooperati'ely is both mutually ad'antageous and common sense. %emocratic =eace !heorychampioned by !homas =aine and international relations theorists such as New York Times columnist !homasFriedmanpresumes that great-power war will likely occur between a democratic and non-democratic state.

Howe'er, as information ows freely and people Dnd outlets for and access to new ideas, authoritarian leaders willDnd it harder to culti'ate popular support for total waran argument ad'anced by philosopher Cmmanuel Kant inhis +132 essay =erpetual =eace.I 9onsider, for e:ample, 9hinaBs unceasing attempts to control Cnternet access.!he *)++ #rab Spring demonstrated that organiLed opposition to unpopular despotic rule has begun to reshape thepolitical order, a change gal'aniLed largely by social media. 6oreo'er, few would argue that 9hina today is notsocially more liberal, economically more capitalistic, and go'ernmentally more inclusi'e than during 6ao !se-tungBsregime. #s these trends continue, nations will Dnd large-scale conict increasingly disagreeable. Cn terms of themilitary,ongoing Dscal constraints and socio-economic problems likely will marginaliLe defense issues.#ll the morereason whygreat powers will Dnd it mutually beneDcial to work together to Dnd solutions tocommon security problems, such as countering drug smuggling, piracy, climate change, human traWcking, andterrorismmissions that #dmiral obert F. ;illard, former 9ommander, O.S. =aciDc 9ommand, called deterrenceand reassurance.I

There is no nuclear ris7 from great #o$ers2 rogue states2 or

terrorism lo$ ris7 should be treated as no ris7@ueller 1=, @ohn 6ueller is a professor of political science at Thio State Oni'ersity 9alming Tur &uclear@itters,I Issues In Science and Technology, ;inter *)+), http"//issues.org/*-*/mueller/#n e:aggerated fear of nuclear weapons has led to many wrongheaded policy decisions. # more sober assessment is needed. !he fearsome destructi'epower of nuclear weapons pro'okes understandable dread, but in crafting public policy we must mo'e beyond this initial reaction to soberly assess therisks and consider appropriate actions. Tut of awe o'er and an:iety about nuclear weapons, the worldBs super-powers accumulated enormous arsenals ofthem for nearly 2) years. ?ut then, in the wake of the 9old ;ar, fears that the bombs would be used 'anished almost entirely. #t the same time, concerns

that terrorists and rogue nations could ac0uire nuclear weapons ha'e sparked a new surge of fear and speculation. Cn the past, e:cessi'e fearabout nuclear weapons led to many policies that turned out to be wasteful andunnecessary. ;e should take the time to assess these new risks to a'oid an o'erreaction that will take resources and attention away from otherproblems. Cndeed, a more thoughtful analysis will re'eal that the new percei'ed danger is far less likely than it might at Drst appear. #lbert Einsteinmemorably proclaimed that nuclear weapons ha'e changed e'erything e:cept our way of thinking.I ?ut the weapons actually seem to ha'e changedlittle e:cept our way of thinking, as well as our ways of declaiming, gesticulating, deploying military forces, and spending lots of money. !o begin with, the

bombBs impact on substanti'e historical de'elopments has turned out to be minimal. &uclear weapons are, of course, routinelygi'en credit for pre'enting or deterring a maMor war during the 9old ;ar era.

Howe'er, it is increasingly clear that the So'iet Onion ne'er had the slightestinterest in engaging in any kind of conict that would remotely resemble ;orld ;arCC, whether nuclear or not. Cts agenda emphasiLed re'olution, class rebellion, andci'il war, conict areas in which nuclear weapons are irrele'ant. !hus, there was nothreat of direct military aggression to deter.6oreo'er, the possessors of nuclear weapons ha'e ne'er been able toDnd much military reason to use them, e'en in principle, in actual armed conicts. #lthough they may ha'e failed to alter substanti'e history, nuclearweapons ha'e inspired legions of strategists to spend whole careers agoniLing o'er what one analyst has called nuclear metaphysics,I arguing, fore:ample, o'er how many 6CJs (multiple independently targetable reentry 'ehiclesA could dance on the head of an C9?6 (intercontinental ballisticmissileA. !he result was a colossal e:penditure of funds. 6ost important for current policy is the fact that contrary to decades of hand-wringing about the

inherent appeal of nuclear weapons, most countries ha'e actually found them to be a substantialand e'en ridiculous misdirection of funds, eort, and scientiDc talent . !his is a maMor if much-underappreciated reason why nuclear proliferation has been so much slower than predicted o'er the decades. Cn addition, the proliferation thathas taken place has been substantially inconse0uential. ;hen the 0uintessential rogue state, 9ommunist 9hina, obtained nuclear weapons in +3,9entral Cntelligence #gency %irector @ohn 6c9one sternly proclaimed that nuclear war was almost ine'itable.I ?ut far from engaging in the nuclear

blackmail e:pected at the time by almost e'eryone, 9hina built its weapons 0uietly and has ne'er made areal nuclear threat . %espite this e:perience, proliferation an:iety continues to ourish. For more than a decade, O.S.policymakers obsessed about the possibility that Saddam Hussein Bs pathetic and technologicallydysfunctional regime in Cra0 couldin time obtain nuclear weapons, e'en though it took the far moread'anced =akistan *4 years. !o pre'ent this imagined and highly unlikely calamity, damaging and destructi'e economic sanctionswere imposed and then a war was waged, and each 'enture has probably resulted in more deaths than were suered at Hiroshima and &agasakicombined. (#t Hiroshima and &agasaki, about 1,))) people died immediately and ,))) more died o'er the ne:t four months. 6ost estimates of theCra0 war ha'e put total deaths there at about the Hiroshima-&agasaki le'els, or higher.A !oday, alarm is focused on the e'en more pathetic regime in &orthKorea, which has now tested a couple of atomic de'ices that seem to ha'e been DLLles. !here is e'en more hysteria about Cran, which has repeatedlyinsisted it has no intention of de'eloping weapons. Cf that regime changes its mind or is lying, e:perience suggests it is likely to Dnd that, e:cept for


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stoking the national ego for a while, the bombs are substantially 'alueless and a 'ery considerable waste of money and eort. =oliticians ofall stripes preach to an an:ious, appreciati'e, and 'ery numerous choir when they ,like =resident Tbama, proclaim atomic terrorism to be the most immediate and e:tremethreat to global security.I Ct is the problem that, according to %efense Secretary obert Gates, currently keeps e'ery senior leaderawake at night.!his is hardly a new an:iety. Cn +3, atomic bomb maker @. obert Tppenheimer ominously warned that if three orfour men could smuggle in units for an atomic bomb, they could blow up &ew Pork. !his was an early e:pression of a pattern of dramatic risk ination that

has persisted throughout the nuclear age. Cn fact, although e:panding Dres and fallout might increase the eecti'e destructi'e radius, the blast of aHiroshima-siLe de'ice would blow upI about +> of the cityBs areaa tragedy, of course, but not the same as one +)) times greater. Cn the early +31)s,nuclear physicist !heodore !aylor proclaimed the atomic terrorist problem to be immediate,I e:plaining at length how comparati'ely easy it would be tosteal nuclear material and step by step make it into a bomb.I #t the time he thought it was already too late to pre'ent the making of a few bombs, hereand there, now and then,I or in another ten or Dfteen years, it will be too late.I !hree decades after !aylor, we continue to wait for terrorists to carry outtheir easyI task. Cn contrast to these predictions, terrorist groups seem to ha'e e:hibited only limited desire and e'en less progress in going atomic. !hismay be because, after brief e:ploration of the possible routes, they, unlike generations of alarmists, ha'e disco'ered that the tremendous eort re0uiredis scarcely likely to be successful. !he most plausible route for terrorists, according to most e:perts, would be to manufacture an atomic de'icethemsel'es from purloined Dssile material (plutonium or, more likely, highly enriched uraniumA. !his task, howe'er, remains a daunting one, re0uiring thata considerable series of diWcult hurdles be con0uered and in se0uence. Tutright armed theft of Dssile material is e:ceedingly unlikely not only because ofthe resistance of guards, but because chase would be immediate. # more promising approach would be to corrupt insiders to smuggle out the re0uiredsubstances. Howe'er, this re0uires the terrorists to pay o a host of greedy confederates, including brokers and money-transmitters, any one of whomcould turn on them or, either out of guile or incompetence, furnish them with stu that is useless. Cnsiders might also consider the possibility that once theheist was accomplished, the terrorists would, as analyst ?rian @enkins none too delicately puts it, ha'e e'ery incenti'e to co'er their trail, beginning with

eliminating their confederates.I Cf terrorists were somehow successful at obtaining a suWcientmass of rele'ant material, they would then probably ha'e to transport it a longdistance o'er unfamiliar terrain and probably while being pursued by security

forces.9rossing international borders would be facilitated by following established smuggling routes, but these are not as chaotic as they appear and are often under the watch of suspicious and careful criminal regulators. Cf border personnel became suspicious of the commodity being

smuggled, some of them might Dnd it in their interest to disrupt passage, perhaps to collect the bounteous reward money that would probably be oered by alarmed go'ernments once the uranium theft had been disco'ered. Tnce outside the country with their precious booty, terrorists would need to set up alarge and well-e0uipped machine shop to manufacture a bomb and then to populate it with a 'ery select team of highly skilled scientists, technicians, machinists, and administrators. !he group w ould ha'e to be assembled and retained for the monumental task while no conse0uential suspicions weregenerated among friends, family, and police about their curious and sudden absence from normal pursuits back home. 6embers of the bomb-building team would also ha'e to be utterly de'oted to the cause, of course, and they would ha'e to be willing to put their li'es and certainly their careers at high risk,because after their bomb was disco'ered or e:ploded they would probably become the targets of an intense worldwide dragnet operation. Some obser'ers ha'e insisted that it would be easy for terrorists to assemble a crude bomb if they could get enough Dssile material. ?ut 9hristoph ;irL and EmmanuelEgger, two senior physicists in charge of nuclear issues at SwitLerlandQs SpieL $aboratory, bluntly conclude that the task could hardly be accomplished by a subnational group.I !hey point out that precise blueprints are re0uired, not Must sketches and general ideas, and that e'en with a good blueprint theterrorist group would most certainly be f orced to redesign. !hey also stress that the work is diWcult, dangerous, and e:tremely e:acting, and that the technical re0uirements in se'eral Delds 'erge on the unfeasible. Stephen Pounger, former director of nuclear weapons research at $os #lamos $aboratories, hasmade a similar argument, pointing out that uranium is e:ceptionally diWcult to machineI whereas plutonium is one of the most comple: metals e'er disco'ered, a material whose basic properties are sensiti'e to e:actly how it is processed. Stressing the daunting problems associated with material purity,machining, and a host of other issues,I Pounger concludes, to think that a terrorist group, working in isolation with an unreliable supply of electricity and little access to tools and suppliesI could fabricate a bomb is farfetched at best.I Onder the best circumstances, the process of making a bomb could takemonths or e'en a year or more, which would, of course, ha'e to be carried out in utter secrecy. Cn addition, people in the area, including criminals, may obser'e with increasing curiosity and puLLlement the constant coming and going of technicians unlikely to be locals. Cf the eort to build a bomb wassuccessful, the Dnished product, weighing a ton or more, would then ha'e to be transported to and smuggled into the rele'ant target country where it would ha'e to be recei'ed by collaborators who are at once totally dedicated and technically proDcient at handling, maintaining, detonating, and perhapsassembling the weapon after it arri'es. !he Dnancial costs of this e:tensi'e and e:tended operation could easily become monumental. !here would be e:pensi'e e0uipment to buy, smuggle, and set up and people to pay or pay o. Some operati'es might work for free out of utter dedication to the cause, butthe 'ast conspiracy also re0uires the sub'ersion of a considerable array of criminals and opportunists, each of whom has e'ery incenti'e to push the price for cooperation as high as possible. #ny criminals competent and capable enough to be eecti'e allies are also likely to be both smart enough to seeboundless opportunities for e:tortion and psychologically e0uipped by their profession to be willing to e:ploit them. !hose who warn about the likelihood of a terrorist bomb contend that a terrorist group could, if with great diWculty, o'ercome each obstacle and that doing so in each case is not impossible.I?ut although it may not be impossible to surmount each indi'idual step, the likelihood that a group c ould surmount a series of them 0uic kly becomes 'anishingly small. !able + attempts to catalogue the barriers that must be o'ercome under the scenario considered most likely to be successful. Cncontemplating the task before them, would-be atomic terrorists would eecti'ely be re0uired to go though an e:ercise that looks much like this. Cf and when they do, they will undoubtedly conclude that their prospects are daunting and accordingly uninspiring or e'en terminally dispiriting. Ct is possible tocalculate the chances for success. #dopting probability estimates that purposely and hea'ily bias the case in the terroristsB fa'orfor e:ample, assuming the terrorists ha'e a 2)> chance of o'ercoming each of the *) obstaclesthe chances that a concerted eort would be successful comes out to be lessthan one in a million. Cf one assumes, somewhat more realistically, that their chances at each barrier are one in three, the cumulati'e odds that they will be able to pull o the deed drop to one in w ell o'er three billion. Tther routes would-be terrorists might take to ac0uire a bomb are e'en more problematic.!hey are unlikely to be gi'en or sold a bomb by a generous like-minded nuclear state for deli'ery abroad because the risk would be high, e'en for a country led by e:tremists, that the bomb (and its sourceA would be disco'ered e'en before deli'ery or that it would be e:ploded in a manner and on a target thedonor would not appro'e, including on the donor itself. #nother concern would be that the terrorist group might be inDltrated by foreign intelligence. !he terrorist group might also seek to steal or illicitly purchase a loose nuke somewhere. Howe'er, it seems probable that none e:ist. #ll go'ernments ha'e anintense interest in controlling any weapons on their territory because of fears that they might become the primary target. 6oreo'er, as technology has de'eloped, Dnished bombs ha'e been out-Dtted with de'ices that trigger a non-nuclear e:plosion that destroys the bomb if it is tampered with. #nd there areother security techni0ues" ?ombs can be kept disassembled with the component parts stored in separate high-security 'aults, and a process can be set up in which two people and multiple codes are re0uired not only to use the bomb but to store, maintain, and deploy it. #s Pounger points out, only a fewpeople in the world ha'e the knowledge to cause an unauthoriLed detonation of a nuclear weapon.I !here could be dangers in the chaos that would emerge if a nuclear state were to utterly collapseU =akistan is fre0uently cited in this conte:t and sometimes &orth Korea as well. Howe'er, e'en under suchconditions, nuclear weapons would probably remain under hea'y guard by people who know that a purloined bomb might be used in their own territory. !hey would still ha'e locks and, in the case of =akistan, the weapons would be disassembled. !he al Xaeda factor !he degree to which al Xaeda, the onlyterrorist group that seems to want to target the Onited States, has pursued or e'en has much interest in a nuclear weapon may ha'e been e:aggerated. !he 3/++ 9ommission stated that al Xaeda has tried to ac0uire or make nuclear weapons for at least ten years,I but the only substantial e'idence itsupplies comes from an episode that is supposed to ha'e taken place about +33 in Sudan, when al Xaeda members may ha'e sought to pu rchase some uranium that turned out to be bogus. Cnformation about this supposed 'enture apparently comes entirely from @amal al Fadl, who defected from al Xaeda in+33 after being caught stealing _++),))) from the organiLation. Tthers, including the man who allegedly purchased the uranium, assert that although there were 'arious other scams taking place at the time that may ha'e ser'ed as grist for Fadl, the uranium episode ne'er happened. #s a key indication ofal XaedaBs desire to obtain atomic weapons, many ha'e focused on a set of con'ersations in #fghanistan in #ugust *))+ that two =akistani nuclear scientists reportedly had with Tsama bin $aden and three other al Xaeda oWcials. =akistani intelligence oWcers characteriLe the discussions as academicI innature. Ct seems that the discussion was wide-ranging and rudimentary and that the scientists pro'ided no material or speciDc plans. 6oreo'er, the scientists probably were incapable of pro'iding truly helpful information because their e:pertise was not in bomb design but in the processing of Dssile material,which is almost certainly beyond the capacities of a nonstate group. Kalid Sheikh 6ohammed, the apparent planner of the 3/++ attacks, reportedly says that al XaedaBs bomb eorts ne'er went beyond searching the Cnternet. #fter the fall of the !aliban in *))+, technical e:perts from the 9C# and the%epartment of Energy e:amined documents and other information that were unco'ered by intelligence agencies and the media in #fghanistan. !hey unco'ered no credible information that al Xaeda had obtained Dssile material or ac0uired a nuclear weapon. 6oreo'er, they found no e'idence of anyradioacti'e material suitable for weapons. !hey did unco'er, howe'er, a nuclear-relatedI document discussing openly a'ailable concepts about the nuclear fuel cycle and some weapons-related issues.I @ust a day or two before al Xaeda was to ee from #fghanistan in *))+, bin $aden supposedly told a=akistani Mournalist, Cf the Onited States uses chemical or nuclear weapons against us, we might respond with chemical and nuclear weapons. ;e possess these weapons as a deterrent.I Gi'en the military p ressure that they were then under and taking into account the e'idence of the primiti'e or moreprobably none:istent nature of al XaedaBs nuclear p rogram, the reported assertions, although unsettling, appear at best to be a desperate blu. ?in $aden has made statements about nuclear weapons a few other times. Some of these pronouncements can be seen to be threatening, but they are rather coyand indirect, indicating perhaps something of an interest, but not acknowledging a capability. #nd as terrorism specialist $ouise ichardson obser'es, Statements claiming a right to possess nuclear weapons ha'e been misinterpreted as e:pressing a determination to use them. !his in turn has fed thee:aggeration of the threat we face.I &orwegian researcher #nne Stenersen concluded after an e:hausti'e study of a'ailable materials that, although it is likely that al Xaeda central has considered the option of using non-con'entional weapons,I there is little e'idence that such ideas e'er de'eloped intoactual plans, or that they were gi'en any kind of priority at the e:pense of more traditional types of terrorist attacks.I She also notes that information on an al Xaeda computer left behind in #fghanistan in *))+ indicates that only _*,))) to _,))) was earmarked for weapons of mass destruction research andthat the money was mainly for 'ery crude work on chemical weapons. !oday, the key portions of al Xaeda central may well total only a few hundred people, apparently assisting the !alibanBs distinctly separate, far larger, and 'ery troublesome insurgency in #fghanistan. ?eyond this tiny band, there arethousands of sympathiLers and would-be Mihadists spread around the globe. !hey mainly connect in Cnternet chat rooms, engage in radicaliLing c on'ersations, and 'ariously dare each other to actually do something. #ny threat,I particularly to the ;est, appears, then, principally to deri'e from self-selectedpeople, often isolated from each other, who fantasiLe about performing dire deeds. From time to time some of these people, or ones closer to al Xaeda central, actually manage to do some harm. #nd occasionally, they may e'en be able to pull o something large, such as 3/++. ?ut in most cases, theircapacities and schemes, or alleged schemes, seem to be far less dangerous than initial press reports 'i'idly, e'en hysterically, suggest. 6ost important for present purposes, howe'er, is that any notion that al Xaeda has the capacity to ac0uire nuclear weapons, e'en if it wanted to, looks farfetched in thee:treme. Ct is also noteworthy that, although there ha'e been plenty of terrorist attacks in the world since *))+, all ha'e relied on c on'entional destructi'e methods. For the most part, terrorists seem to be heeding the ad'ice found in a memo on an al Xaeda laptop seiLed in =akistan in *))" 6ake use ofthat which is a'ailable V rather than waste 'aluable time becoming despondent o'er that which is not within your reach.I Cn fact, history consistently demonstrates that terrorists prefer weapons that they know and understand, not new, e:otic ones. Glenn 9arle, a *-year 9C# 'eteran and once its deputyintelligence oWcer for transnational threats, warns, ;e must not take fright at the specter our leaders ha'e e:aggerated. Cn fact, we must see Mihadists for the small, lethal, disMointed, and miserable opponents that they are.I al Xaeda, he says, has only a handful of indi'iduals capable of planning, organiLing,and leading a terrorist organiLation, and although the group has threatened attacks with nuclear weapons, its capabilities are far inferior to its desires.I =olicy alternati'es !he purpose here has not been to argue that policies designed to incon'enience the atomic terrorist are necessarily unneeded or unwise.ather, in contrast with the many who insist that atomic terrorism under current conditions is rather likely indeed, e:ceedingly likelyto come about, C ha'e c ontended that it is hugely unlikely. Howe'er, it is important to consider not only the likelihood that an e'ent will take place, but also its conse0uences.

!herefore, one must be concerned about catastrophic e'ents e'en if their probability is small, and eorts to reduce that likelihood e'en further may well be MustiDed.#t some point , howe'er, probabilitiesbecome so low that, e'en for catastrophic e'ents, it may make sense to ignorethe mor at least put them on the back burnerU in short, the risk becomes acceptable. For e:ample, the ?ritish could atany time attack the Onited States with their submarine-launched missiles and kill millions of #mericans, far more than e'en the most monumentally giftedand lucky terrorist group. Pet the risk that this potential calamity might take place e'okes little concernU essentially it is an acceptable risk. 6eanwhile,ussia, with whom the Onited States has a rather strained relationship, could at any time do 'astly more damage with its nuclear weapons, a fullyimaginable calamity that is substantially ignored. Cn constructing what he calls a case for fear,I 9ass Sunstein, a scholar and current Tbamaadministration oWcial, has pointed out that if there is a yearly probability of + in +)),))) that terrorists could launch a nuclear or massi'e biologicalattack, the risk would cumulate to + in +),))) o'er +) years and to + in 2,))) o'er *). !hese odds, he suggests, are not the most comforting.I 9omfort,of course, lies in the 'iscera of those to be comforted, and, as he suggests, many would probably ha'e diWculty settling down with odds like that. ?utthere must be some point at which the concerns e'en of these people would ease. @ust perhaps it is at one of the le'els suggested abo'e" one in a million

or one in three billion per attempt. #s forthat other central policy concern, nuclear prolif eration, it seems to me thatpolicymakers should maintain their composure. !he pathetic &orth Korean regime mostly seems to be engaged in aprocess of e:tracting aid and recognition from outside. # 'iable policy toward it might be to reduce the threat le'el and to wait while continuing to bee:torted, rather than to carry out policies that increase the already intense misery of the &orth Korean people. Cf the Cranians do break their pledge not tode'elop nuclear weapons (a con'ersion perhaps stimulated by an airstrike on its facilitiesA, they will probably useI any nuclear capacity in the same wayall other nuclear states ha'e" for prestige (or ego-stokingA and deterrence. Cndeed, suggests strategist and &obel laureate !homas Schelling, deterrence isabout the only 'alue the weapons might ha'e for Cran. &uclear weapons, he points out, would be too precious to gi'e away or to sellI and too preciousto waste killing peopleI when they could make other countries hesitant to consider military action.I Ct seems o'erwhelmingly probable that, if a nuclearCran brandishes its weapons to intimidate others or to get its way, it will Dnd that those threatened, rather than capitulating to its blandishments or rushingo to build a compensating arsenal of their own, will ally with others, including concei'ably Csrael, to stand up to the intimidation. !he popular notion thatnuclear weapons furnish a country with the capacity to dominate its region has little or no historical support. !he application of diplomacy and bribery inan eort to dissuade these countries from pursuing nuclear weapons programs may be usefulU in fact, if successful, we would be doing them a fa'or. ?ut

although it may be heresy to say so, the world can li'e with a nuclear Cran or &orth Korea , as it hasli'ed now for 2 years with a nuclear 9hina , a country once 'iewed as the ultimate


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rogue. Should push e'entually come to sho'e in these areas, the problem will be to establish orderly deterrent and containment strategies and toa'oid the temptation to lash out mindlessly at fancied threats. #lthough there is nothing wrong with makingnonproliferation a high priority , it should be topped with a somewhat higher one"a'oiding policies that can lead to the deaths of tens or hundreds of thousands ofpeople under the obsessi'e sway of worst-case scenario fantasies. Cn the end, it appears to methat, whate'er their impact on acti'ist rhetoric, strategic theoriLing, defense budgets, and political posturing, nuclear weapons ha'e had at best a 0uite

limited eect on history, ha'e been a substantial waste of money and eort, do not seem to ha'e been terribly appealing to most states that do not ha'ethem, are out of reach for terrorists, and are unlikely to materially shape much of our future.


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Case !"tensions


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;nhFacial recognition lac7s any governmental regulation%

Peterson2 5D15. #ndrea, ;ashington =ost, *)+2. !he go'ernmentBs plan toregulate facial recognition tech is falling apart.I @@: nu7e ar- =rofessor of Social Sciences at the Oni'ersity of ;ollongong,#ustralia, ?rian 6artin, 9riti0ue of nuclear e:tinction, =ublished in @ournal of =eace

esearch, Jol. +3, &o. , +34*, pp. *41-)), http"//www.bmartin.cc/pubs/4*Mpr.html!o summarise the abo'e points, a maMor global nuclear war in which populationcentres in the OS, So'iet Onion, Europe and 9hina ware targeted, with no eecti'eci'il defence measures taken, could kill directly perhaps )) to 2) million people.Cnduced eects, in particular star'ation or epidemics following agricultural failure oreconomic breakdown, might add up to se'eral hundred million deaths to the total,though this is most uncertain. Such an e'entuality would be a catastrophe ofenormous proportions, but it is far from e:tinction. E'en in the most e:treme casethere would remain ali'e some ))) million people, about nine-tenths of the worldZspopulation, most of them unaected physically by the nuclear war. !he followingareas would be relati'ely unscathed, unless nuclear attacks were made in these

regions" South and 9entral #merica, #frica, the 6iddle East, the Cndiansubcontinent, Southeast #sia, #ustralasia, Tceania and large parts of 9hina. E'en inthe mid-latitudes of the northern hemisphere where most of the nuclear weaponswould be e:ploded, areas upwind of nuclear attacks would remain free of hea'yradioacti'e contamination, such as =ortugal, Creland and ?ritish 9olumbia. 6anypeople, perhaps especially in the peace mo'ement, belie'e that global nuclear warwill lead to the death of most or all of the worldZs population.+* Pet the a'ailablescientiDc e'idence pro'ides no basis for this belief. Furthermore, there seem to beno con'incing scientiDc arguments that nuclear war could cause human e:tinction.+ Cn particular, the idea of Zo'erkillZ, if taken to imply the capacity to kill e'eryoneon earth, is highly misleading.+ Cn the absence of any positi'e e'idence,

statements that nuclear war will lead to the death of all or most people on earthshould be considered e:aggerations. Cn most cases the e:aggeration is unintended,since people holding or stating a belief in nuclear e:tinction are 0uite sincere.+2#nother maMor point to be made in relation to statements about nuclear war is thatalmost e:clusi'e attention has been focussed on the Zworst caseZ of a maMor globalnuclear war, as indeed has been done in the pre'ious paragraphs. # maMor globalnuclear war is a possibility, but not the only one. Cn the case of ZlimitedZ nuclear war,anywhere from hundreds of people to many tens of millions of people might die.+

!his is a real possibility, but peace mo'ement theory and practice ha'e de'elopedalmost as if this possibility does not e:ist. ;hy the eects of nuclear war aree:aggerated ;hy do so many people ha'e an e:aggerated idea of the eects of

nuclear war, or focus on the worst possible outcome7 6any people tend to belie'ewhat they hear, but in the case of nuclear war there are both 'ery pessimisticaccounts and other accounts which minimise the dangers. 6any people, though notall by any means, seem to assume the worst and not look into the technical details -as indeed C myself did until a few years ago. ;hy7 Here C outline a number ofpossible reasons for e:aggeration of the eects of nuclear war and emphasis onworst cases. ;hile the importance of most of these reasons may be disputed, C feelit is necessary to raise them for discussion. !he points raised are not meant to lay
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blame on anyone, but rather to help ensure that peace mo'ement theory andstrategy are founded on sound beliefs. ?y understanding our moti'ations andemotional responses, some insight may be gained into how better to struggleagainst nuclear war. (aA E:aggeration to Mustify inaction. For many people, nuclearwar is seen as such a terrible e'ent, and as something that people can do so little

about, that they can see no point in taking action on peace issues and do not e'enthink about the danger. For those who ha'e ne'er been concerned or taken actionon the issue, accepting an e:treme account of the eects of nuclear war canpro'ide conscious or unconscious MustiDcation for this inaction. Cn short, oneremo'es from oneZs awareness the upsetting topic of nuclear war, and MustiDes thispsychological denial by belie'ing the worst. !his suggests two things. First, it maybe more eecti'e in mobilising people against nuclear war to describe the dangersin milder terms. Some e:periments ha'e shown that strong accounts of danger - fore:ample, of smoking+1 - can be less eecti'e than weaker accounts in changingbeha'iour. Second, the peace mo'ement should de'ote less attention to thedangers of nuclear war and more attention to what people can do to oppose it intheir day-to-day li'es. (bA Fear of death. #lthough death recei'es a large amount ofattention in the media, the consideration of oneZs own death has been one of themost taboo topics in western culture, at least until recently.+4 &uclear war as anissue raises the topic insistently, and unconsciously many people may prefer toa'oid the issue for this reason. !he fear of and repression of conscious thoughtsabout personal death may also lead to an unconscious tendency to e:aggerate theeects of nuclear war. TneZs own personal death - the end of consciousness - can beespecially threatening in the conte:t of others remaining ali'e and conscious.Somehow the death of e'eryone may be less threatening. obert $ifton+3 arguesthat children who learn at roughly the same age about both personal death andnuclear holocaust may be unable to separate the two concepts, and as a resulte0uate death with annihilation, with undesirable conse0uences for copingindi'idually with life and working collecti'ely against nuclear war. #nother factorhere may be a feeling of potential guilt at the thought of sur'i'ing and ha'ing donenothing, or not enough or not the right thing, to pre'ent the deaths of others. #gain,the idea that nearly e'eryone will die in nuclear war does not raise such disturbingpossibilities. (cA E:aggeration to stimulate action. ;hen people concerned aboutnuclear war describe the threat to others, in many cases this does not trigger anyaction. #n understandable response by the concerned people is to e:pand thethreat until action is triggered. !his is 'alid procedure in many physiological andother domains. Cf a person does not heed a call of ZFire[Z, shouting louder may do thetrick. ?ut in many instances of intellectual argument this procedure is notappropriate. Cn the case of nuclear war it seems clear that the threat, e'en whenstated 'ery conser'ati'ely, is already past the point of suWcient stimulation. !hismeans that what is needed is not an e:pansion of the threat but rather somea'enue which allows and encourages people to take action to challenge the threat.# carefully thought out and planned strategy for challenging the war system, astrategy which makes sense to uncommitted people and which can easilyaccommodate their in'ol'ement, is one such a'enue.*) (dA =lanning anddefeatism. =eople may identify thinking about and planning for an undesirablefuture - namely the occurrence and aftermath of nuclear war - with accepting its


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ine'itability (defeatismA or e'en actually wanting it. ?y e:aggerating the eects ofnuclear war and emphasising the worst possible case, there becomes no post-warfuture at all to prepare for, and so this diWculty does not arise. !he limitations ofthis response are apparent in cases other than nuclear war. Surely it is notdefeatism to think about what will happen when a labour strike is broken, when a

social re'olution is destroyed (as in 9hileA or turns bad (as in the So'iet OnionA, orwhen political e'ents de'elop in an e:pected though unpleasant way (as &aLism inthe +3*)s and +3)sA. Since, C would argue, some sort of nuclear war is 'irtuallyine'itable unless radical changes occur in industrialised societies, it is realism ratherthan defeatism to think about and take account of the likely aftermath of nuclearwar. #n eecti'e way to deal with the feeling or charge of defeatism is to preparefor the political aftermath of nuclear war in ways which reduce the likelihood ofnuclear war occurring in the Drst place. !his can be done for e:ample by de'elopingcampaigns for social defence, peace con'ersion and community self-managementin ways which ser'e both as preparation to resist political repression in time ofnuclear crisis or war, and as positi'e steps to build alternati'es now to war-linkedinstitutions.*+ (eA E:aggeration to Mustify concern (CA. =eople in'ol'ed with anyissue or acti'ity tend to e:aggerate its importance so as to Mustify and sustain theirconcern and in'ol'ement. &uclear war is only one problem among many pressingproblems in the world, which include star'ation, po'erty, e:ploitation, racial andse:ual ine0uality and repressi'e go'ernments. ?y concentrating on peace issues,one must by necessity gi'e less attention to other pressing issues. #n unconscioustendency to e:aggerate the eects of nuclear war has the eect of reducingconscious or unconscious guilt at not doing more on other issues. Guilt of this sortis undoubtedly common, especially among those who are acti'e on social issuesand who become familiar with the wide range of social problems needing attention.

!he irony is that those who feel guilt for this reason tend to be those who ha'e leastcause to feel so. Tne politically eecti'e way to o'ercome this guilt may be tostrengthen and e:pand links between anti-war struggles and struggles for Mustice,e0uality and the like. (fA E:aggeration to Mustify concern (CCA. Spokespeople andapologists for the military establishment tend to emphasise conser'ati'e estimatesof the eects of nuclear war. !hey also are primarily concerned with military andeconomic Zsur'i'alZ of society so as to confront further threats to the state. Tneresponse to this orientation by people fa'ouring non-military approaches to worldorder and peace is to assume that the military-based estimates are too low, andhence to e:aggerate the eects and emphasise worst cases. !he emotionalunderpinning for this response seems to be something like this" Zif a militarist thinksnuclear war will kill +)) million people and still wants more nuclear weapons, andbecause C am totally opposed to nuclear war or plans for waging it, thereforenuclear war surely would kill 2)) million people or e'eryone on earth.Z !his sort ofunconscious reasoning confuses oneZs estimate of the siLe of a threat with oneZsattitude towards it. # more tenable conclusion is that the 'alue structures of themilitarist and the peace acti'ist are suWciently dierent to fa'our 'ery dierentcourses of action when considering the same e'idence. !he assumption that a gi'enitem of information will lead to a uniform emotional response or conclusion about itsimplications is false. !he primary factor underlying dierences in response to thethreat of nuclear war is not dierences in assessments of de'astation, but political


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dierences. !he identiDcation of the degree of opposition to nuclear war with thedegree of de'astation en'isaged may also lead to the labelling of those who makemoderate estimates of the danger as lukewarm opponents of nuclear war. Cn manycases such an identiDcation has some degree of 'alidity" those with more awarenessof the e:tent of racism, se:ism, e:ploitation and misery in the world are often the

ones who take the strongest action. ?ut the connection is not in'ariable. E:tremismof belief and action does not automatically ensure accurate beliefs or eecti'eaction. # recurrent problem is how to talk about nuclear war and wide scalede'astation without appearing - or being - hardhearted. =eace acti'ists are 0uiteright to reMect sterilised language and doublethink (Z=eace is warZA in discussions onnuclear death and destruction, especially when the facade of obMecti'ity masksdangerous policies. ?ut an e:clusi'e reliance on highly emotional arguments, or anunoWcial contest to see who can paint the worst picture of nuclear doom, isundesirable too, especially to the degree it sub'erts or paralyses critical thinkingand creati'e de'elopment of strategy. #nother unconscious identiDcation, relatedto the identiDcation of the le'el of opposition to nuclear war with the le'el ofdestruction thought to be caused by it, arises out of peopleZs abhorrence atZthinking about the unthinkableZ, namely post-nuclear war planning by military andstrategic planners. !his abhorrence easily becomes abhorrence at Zthinking aboutthe unthinkableZ in another sense, namely thinking about nuclear war and itsaftermath from a peace acti'ist point of 'iew. !he abhorrence, though, should bedirected at the morality and politics of the military and strategic planners, not atthinking about the ZunthinkableZ e'ent itself. 6any peace acti'ists ha'e acceptedthe reality of nuclear war as ZunthinkableZ, lea'ing the likes of strategic plannerHerman Kahn with a 'irtual monopoly on thinking about nuclear war. So while post-nuclear war planning is seriously carried out by some military and go'ernmentbodies, the strategies of the peace mo'ement are seriously hampered by the gapcreated by self-imposed ZunthinkabilityZ. (gA ;hite, western orientation. 6ost of thecontinuing large-scale suering in the world - caused by po'erty, star'ation, diseaseand torture - is borne by the poor, non-white peoples of the third world. # globalnuclear war might well kill fewer people than ha'e died of star'ation and hunger-related disease in the past 2) or +)) years.** Smaller nuclear wars would makethis sort of contrast greater.* &uclear war is the one source of possible deaths ofmillions of people that would aect mainly white, rich, western societies (9hina and

@apan are the prime possible e:ceptionsA. ?y comparison, the direct eect of globalnuclear war on nonwhite, poor, third world populations would be relati'ely small.


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Framing


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outcomes Second, itZs based on awed logic. ;t begs the uestion by assuming that

a #ro#onent of an action must #rove that the nightmare scenario is

im#ossible Third2 it can be used to su##ort any #osition or its opposite. ;f $e

build a nuclear #o$er #lant2 it could melt do$n ;f $e don8t build it2 $e $ill

run short of #o$er and society $ill colla#se into anarchyCf we allow ights nearCcelandZs 'olcanic ash, planes will crash and people will die. Cf we donZt, organs wonZt arri'e in time for transplant

operations and people will die. Cf we donZt in'ade Cra0, Saddam Hussein might use the nuclear weapons he mightha'e. Cf we do, we might destabiliLe the 6iddle East, leading to widespread 'iolence and death. Tf course, not allfears are e0ual. !hose that we tend to e:aggerate are more easily MustiDed by worst-case thinking. So terrorismfears trump pri'acy fears, and almost e'erything elseU technology is hard to understand and therefore scaryUnuclear weapons are worse than con'entional weaponsU our children need to be protected at all costsU and

annihilating the planet is bad. (asically2 any fear that $ould ma7e a good movie #lot

is amenable to $orst%case thin7ing Fourth and ,nally2 $orst%case thin7ing

validates ignorance Cnstead of focusing on what we know, it focuses on what we donZt know -- and whatwe can imagine. emember %efense Secretary %onald umsfeldZs 0uote7 Yeports that say that something hasnZthappened are always interesting to me, because as we know, there are known knownsU there are things we knowwe know. ;e also know there are known unknownsU that is to say we know there are some things we do not know.?ut there are also unknown unknowns -- the ones we donZt know we donZt know.Y #nd this" Ythe absence ofe'idence is not e'idence of absence.Y Cgnorance isnZt a cause for doubtU when you can Dll that ignorance withimagination, it can be a call to action. E'en worse, it can lead to hasty and dangerous acts Pou canZt wait for a

smoking gun, so you act as if the gun is about to go o. Rather than ma7ing us safer2 $orst%case thin7ing has the #otential to cause dangerous escalation !he newundercurrent in this is that our society no longer has the ability to calculate probabilities. isk assessment isde'alued. =robabilistic thinking is repudiated in fa'or of Ypossibilistic thinkingY" Since we canZt know whatZs likely to

go wrong, letZs speculate about what can possibly go wrong. orst%case thin7ing leads to bad

decisions2 bad systems design2 and bad security#nd we all ha'e direct e:perience withits eects" airline security and the !S#, which we make fun of when weZre not appalled that theyZre harassing 3-

year-old women or keeping Drst-graders o airplanes. Pou canZt be too careful[ #ctually, you can.9ou can

refuse to )y because of the #ossibility of #lane crashes 9ou can loc7 your

children in the house because of the #ossibility of child #redators . Pou caneschew all contact with people because of the possibility of hurt. Ste'en Hawking wants to a'oid trying tocommunicate with aliens because they might be hostileU does he want to turn o all the planetZs tele'ision

broadcasts because theyZre radiating into space7 Ct isnZt hard to parody worst-case thinking, and at its e:treme itZs apsychological condition. Frank Furedi, a sociology professor at the Oni'ersity of Kent, writes" Y;orst-case thinkingencourages society to adopt fear as one of the dominant principles around which the public, the go'ernment andinstitutions should organiLe their life. Ct institutionaliLes insecurity and fosters a mood of confusion andpowerlessness. !hrough populariLing the belief that worst cases are normal, it incites people to feel defenseless and'ulnerable to a wide range of future threats.Y E'en worse, it plays directly into the hands of terrorists, creating apopulation that is easily terroriLed -- e'en by failed terrorist attacks like the 9hristmas %ay underwear bomber andthe !imes S0uare SOJ bomber. ;hen someone is proposing a change, the onus should be on them to Mustify it o'er

the status 0uo. ?ut $orst case thin7ingis a way of looking at the world that e:aggerates the rare andunusual and gi'es the rare much more credence than it deser'es. Ct isnZt really a principleU itZs a cheap trick to

Mustify what you already belie'e. Ct lets laLy or biased#eo#le ma7e $hat seem to be cogent

arguments $ithout understanding the $hole issue#nd when people donZt need torefute counterarguments, thereZs no point in listening to them.


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FRT 7> Anonymous S#eech

FRT re#resents a serious threat to anonymous

s#eechDassembly

(ro$n 1+ R #ssociate =rofessor of $aw, Oni'ersity of ?altimore Schoolof $aw. ?.#., 9ornellU @.%., Oni'ersity of 6ichigan (Kimberly &, #&T&P6C!P,F#9E=C&!S, #&% !HE 9T&S!C!O!CT&, GET. 6#ST& $. EJ. JT$. *+"*, *)+,http"//georgemasonlawre'iew.org/wp-content/uploads/*)+/)/?rown-;ebsite.pdfA

;ith the e:ception of %oe, an important distinguishing feature of the First #mendment anonymity cases is the

in'ol'ement of legislati'e attempts to coerce the disclosure of personal identities. F! presents aparticularly diWcult problem under pre'ailing constitutional law because most facesare routinely e:posed in public. &o domestic law re0uires that a personBs facialfeatures be unobstructed while she maneu'ers about in public places so that the

go'ernment can use them for identiDcation purposes. Her 'isage is there for thego'ernmentBs taking. !echnology has thus become deterministic of personal pri'acytoday. Pet there is no reciprocal power on the part of indi'iduals to direct howtechnology will e'ol'e in relationship to their pri'acy interests or e'en to opt out ofits implications for their daily li'es. !he First #mendment anonymity cases and Fourth #mendmentdoctrine assume that a person possesses the discretion to take steps to protect communications or other eects

from go'ernmental intrusionthat is, by keeping personal information pri'ate. Cn the First #mendmentconte:t, the 9ourt has upheld pri'ate indi'idualsB ability to choose to keep theiridentities anonymousin some respect. Cndeed, the fact that the 6cCntyre plainti simultaneously disclosedher identity in other pamphlets was irrele'ant to the 9ourtBs analysis and ultimate conclusion that her choice to

remain anonymous was protected by the First #mendment.) Cn the Fourth #mendment arena,disclosure operates as a wai'er of sorts, but the 9ourt has taken pains to identify

how the subMect of police in0uiry could ha'e eecti'ely in'oked constitutionalprotections by keeping information pri'ate. Cn both conte:ts, the underlyingassumptionsupporting the 9ourtBs analyses of the constitutional guarantee at issue is that citiLens ha'ea choice andca'eat emptorif they choose public disclosure, the 9onstitution cannotsa'e them from the conse0uences of that choice. FacebookBs F! features areactive by default.+ Ct takes si: clicks to reach a disclosure that Facebook uses F!.* #ppleBsi=hoto does not ha'e an opt-out function at all. 9urrently, there are no lawsre0uiring pri'ate entities to pro'ide indi'iduals with notice that they are collectingpersonal data using F!, how long that data will be stored, whether and how it willbe shared, or how it will be used . Tther countries ha'e regulations that gi'e Cnternet users controlo'er their own data. 2 Cn the Onited States, howe'er, #rivate com#anies are free to

sell2 trade2 and #ro,t from individuals- biometric information. =ri'atecompanies can also disclose indi'idualsB data to go'ernment authorities withouttheir consent. Fourth and First #mendment law is remarkably consistent in its deference to the subMectBschoice to remain anonymous or put information into the public domain. Cf people protect their pri'acy,the 9onstitution protects it too. Cn modern times, the problem with this tautology isthat the concept of choice implies that there is more than one meaningful optionith FRT and other emerging technologies2 there is no mechanism for

o#ting out of the various sources that are amalgamated into $hat


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amounts to surveillance. !he theory behind the Fourth #mendment doctrines that lift its protections

for information disclosed publicly or to third parties is thus unsustainable. #ccordingly, the recognition ofanonymity as a constitutional 'alue that warrants protection under the First andFourth #mendments may re0uire numerous safeguardsI in place for forestallingindiscriminate disclosure,I as @ustice ?rennan suggested in ;halen. 1 Cn his words, whethersophisticated storage and matching technology amounts to a depri'ation of constitutionally protected pri'acy

interestsI might depend in part on congressional or regulatory protections put in place to forbid the go'ernmentBs

use of big data for arbitrary monitoring of the populace without indi'idualsB consent.4!his will not beeasy. 9hoosing to opt outI of GoogleBs tracking technologies itself lea'es a trace,and technology e:ists to re-identifyI people whose personal identiDers, such asname, address, credit card information, birth date, and social security number hadbeen remo'ed from a dataset.3 ?ut constitutional limits on the go'ernmentBsability to work around indi'idualsB attempts to protect their pri'acy would be animportant step toward rescuing the constitutional 'alue of anonymity before F!and big data are used to do more than simply predict who may commit crimesi.e.,to punish people for future acts.) The $riting is on the $all. Tne day soon, yourphone or in some years your glasses and, in a few more, your contact lenses will tell you the name of thatperson at the party whose name you always forget . . . . Tr it will tell the stalker in the bar the address where you

li'e,I or it will tell the police where you ha'e been and where you are going.+ F! is rapidly mo'ingsociety toward a world in which the 9onstitutionBs scope needs to be meaningfullyreformulated2 else it ris7s irrelevance $hen it comes to individuals- ability

to hide from the #rying eyes of government. * !he third party doctrine and thelongstanding Mudicial reMection of a reasonable e:pectation of pri'acy in matters made public ha'e depleted theFourth #mendment of 'itality for purposes of establishing constitutional barriers to the go'ernmentBs use of F! to

proDle and monitor indi'idual citiLens. #lthough the 9ourt has e:pressly aWrmed protectionsfor anonymous speech under the First #mendment, that doctrine has not beene:tended to address the harms that ow from dragnet-style sur'eillance . Pet e'erymember of the modern 9ourt has at some point recogniLed that technology necessitates a rethinking of traditional

constitutional boundaries. !his #rticle argued that e:isting First #mendment protections for

anonymity should be brought to bear in assessing how Fourth #mendment doctrinecan adapt to the challenges of modern sur'eillance methods. !oday, theconglomerate of publicly a'ailable data is colossal and constantly e:panding.

!echnology enables the go'ernment and pri'ate companies to identify patternswithin such data which re'eal new information that does not e:ist anywhere inisolation. #s a conse0uence, information in the digital age is fundamentally distinct from information in the pre-digital age, in which the 9ourtBs Fourth #mendment doctrine e'ol'ed.!his #rticle thus identiDedconstitutionally deri'ed guidelines for courts and lawmakers to consider in crafting

Mudicial, legislati'e, and regulatory responses to the go'ernmentBs newfoundcapacity to create new information from storehouses of data gleaned from socialmedia sites, public cameras, and increasingly sophisticated technologies like F!. ?ygi'ing these guidelines serious consideration, courts and lawmakers can tetherfoundational constitutional protections against o'er-sur'eillance with thede'elopment of the lawlaw that is otherwise broken and outdated.


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Face recognition technology is s#reading and constitutes a

fundamental s#eed bum# for fourth amendment *uris#rudence

Fretty 11 R #ssociate at Crell N 6anella, $$=, in $os #ngeles, 9alifornia,@.% from O9$# School of $aw (%ouglas #., Face-ecognition Sur'eillance" #6oment of !ruth for Fourth #mendment ights in =ublic =laces, Jol + &o , Fall

*)++, Jirginia @ournal of $aw and !echnology,http"//www.'Molt.net/'ol+/issue/'+i5)-Fretty.pdfA

Since the *))+ Super ?owl, when !ampa ?ay installed face-recogniLing cameras in its stadium to catch criminals

attending the big game, #mericans ha'e been increasingly monitored with face-recognition technology(F!A.!hough the techni0ue remainscrude, face-basedsur'eillance is already used in airports and on city streets to detect fugiti'es,teenage runaways, criminal suspects, or anyone who was e'er arrested. #s it spreads,F! will be an unusually fraught topic for courts to address, because it straddles somany fault lines currently lying beneath our Fourth Amendment *uris#rudence.

!hese include whether" (+A people enMoy a reasonable e:pectation of anonymity in

#ublic, (*A a seiLure can occur $ithout halting a personBs mo'ement, (A long%term aggregation of data about indi'iduals can constitute a search, and(A theprobable-cause standard tolerates generaliLed sur'eillance with a high rate offalse #ositives.!hese fault lines are not minor uestions butfundamentalchallenges of the digital-sur'eillance mo'ement. ;hile most courts to address these issues ha'eerred toward diminished Fourth #mendment protection, this #rticle cites an emerging minority that would reclaimbasic pri'acy rights currently threatened by electronic monitoring in public.

The +thamendment is allo$ed to be stretched for #eo#le to be

surveilled but believing #eo#le should e"#ect to be

R!C6/H;L!< fundamentally hollo$s out the amendment

Fretty 11 R #ssociate at Crell N 6anella, $$=, in $os #ngeles, 9alifornia,

@.% from O9$# School of $aw (%ouglas #., Face-ecognition Sur'eillance" #6oment of !ruth for Fourth #mendment ights in =ublic =laces, Jol + &o , Fall*)++, Jirginia @ournal of $aw and !echnology,http"//www.'Molt.net/'ol+/issue/'+i5)-Fretty.pdfA

;hen people e:it their homes, they risk being obser'ed by others and therebyforego any reasonable e:pectation of not being captured by sur'eillance, e'en if theybelie'e they are not obser'ed by anyone.4* !he case of Edward Kowalski illustrates the point.4 6r. Kowalskisuered a neck inMury while working for the =ennsyl'ania State =olice and, a few months after Dling for workersBcompensation, took a 'acation to Florida.4 ;hile at the beach with his wife, he was unknowingly 'ideotaped fordays by a pri'ate in'estigator, hired by the State =olice to 'erify 6r. KowalskiBs medical condition.42 !hough mostpeople would not e:pect or want to be surreptitiously recorded while sunbathing, 6r. Kowalski had no e:pectation ofpri'acy and therefore no Fourth #mendment claim against the State =olice.4 !his doctrine e:tends e'en to

secluded spaces such as the ele'ators and hallways of commercial buildings, where recessed cameras often recordgoings-on. 41 Go'ernment agencies ha'e a strong argument, then, that where people lack an e:pectation of notbeing obser'ed, they e0ually lack an e:pectation of not being recogniLed. ?ecause one could une:pectedly berecogniLed by a fellow pedestrian, so would go the argument, one cannot e:pect that F!-e0uipped cameras willnot match oneBs face against a go'ernment photobase. !his reasoning may strike some as strained, but it is theanalysis that the Supreme 9ourt has applied to sur'eillance since +34, when 9alifornia '. 9iraolo and %ow

9hemical 9o. '. Onited States were decided on the same day.44 !he cases presented similar facts. Cn 9iraolo,police oWcers ew an airplane +,))) feet o'er a suspectBs fenced-o property andobser'ed a small mariMuana Deld.43 Cn %ow 9hemical, E=# agents photographed the
http://www.vjolt.net/vol16/issue3/v16i3_430-Fretty.pdfhttp://www.vjolt.net/vol16/issue3/v16i3_430-Fretty.pdfhttp://www.vjolt.net/vol16/issue3/v16i3_430-Fretty.pdfhttp://www.vjolt.net/vol16/issue3/v16i3_430-Fretty.pdf


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companyBs property from 'arying altitudes with a precision aerial mappingcamera.I3) ?ecause the e'idence gathering in both cases occurred from public airspace, the 9ourt reasoned,any air tra'eler could ha'e obser'ed what the go'ernment agents did, had they bothered to look down.3+ E=#Bsreliance on a sophisticated camera did not amount to a search, said the 9ourt,because" (+A the camera was a'ailable for public use,3* and (*A the agents used the

camera only to augment their natural sensory abilities.3 !he Drst fact matters because, ifaerial mapping cameras are a'ailable in commerce, %ow could not ha'e e:pected its land to be immune from thetechnology.3 !he second fact reects the 9ourtBs 'iew that, as long as technology does not gi'epolice novel #o$ers of #erce#tionthe ability to see through walls or hear pri'atecon'ersations32sensory-enhancing tools are not oensi'e to public e:pectations.3?ased on the e:ample of %ow, police are able to enhance their noses with drugsniWng dogs31 and enhance theireyes with telescopes and binoculars. 34 =olice cannot, howe'er, aim a heat-sensing camera at a suspectBs garage,since this techni0ue is uncomfortably analogous to looking through a wall into a pri'ate space.33 Still, as @ustice=owell admonished in his %ow dissent, the a'ailabilityI and sensory enhancementI tests ine'itably abrogatepublic pri'acy as snooping technology becomes more per'asi'e.+)) $inking sur'eillance cameras to F!, then,

arguably only enhances the policeBs already-e:isting senses" many sur'eillance ad'ocates posit thatscanning a face with F! is simply a highly eWcient 'ersion of looking through atraditional mug shot book.+)+ Further support comes from cases where the police ha'e sought to

subpoena a suspectBs handwriting or 'oice sample without a warrant. ?ecause a personBs handwriting and speechare fre0uently made public, the 9ourt upholds such subpoenas, e'en though the re0uested sample is for theunusual purpose of matching the suspectBs writing or speech to that of a criminal.+)* !he pro-F! interpretation isthat, Must as the go'ernment can demand a 'oice recording for matching purposes, so too can the go'ernment

digitiLe a pedestrianBs likeness for processing with a face-matching algorithm. #s the 9ourt stated indictum in Onited States '. %ionisio, &o person can ha'e a reasonable e:pectationthat others will not know the sound of his 'oice, any more than he can reasonablye:pect that his face will be a mystery to the world.I+) !hough these caseswere notdecided in the sur'eillance conte:t and so would not bind an F! dispute, they foreshado$ the Court-s

lo$%ebbing #rotection of facial #rivacy. &e'ertheless, challengers to F! shouldengage the Harlan standard head-on by demonstrating that #mericans reasonablye:pect not to be identi,ed in #ublic by so#histicated algorithms . Cndeed, the

9ourt has at times cast itself as a bulwark against no'el technology that takes awaypri'acies we once took for granted.+) #s e'idence that people e:pect a degree of anonymity whilemo'ing in public, ci'il libertarians could point to the popular outcries that often accompany acityBs installation of facerecogniLing cameras.+)2 =ublic reaction to !ampa ?ayBs useof F! at the Super ?owl was o'erwhelmingly negati'eU+) the subse0uentinstallation of F! cameras in !ampaBs nightlife district prompted vociferous#rotests, eecti'ely ending the cityBs F! e:periment two years later.+)1 9ourts mayrespond that a personBs outrage means nothing at the point at which sur'eillance technology meets the %ow test.!his argument, made by lower courts in other conte:ts, is that as long as people know a technology couldconcei'ably be used against them by strangers, the go'ernmentBs use of the technology is not a constitutionalissue.+)4 #s articulated in one district opinion, !he proper in0uiry . . . is not what a random stranger wouldactually or likely do with sur'eillance technology, but rather what he feasibly could.I+)3 6embers of the publiccould concei'ably use an online F! program such as =olar ose to identify strangers on the street based on a

furti'elysnapped digital photo.++) 6aking such a scenario all the more plausible, Google is now building anapplication that would locate a personBs online Google =roDle based on any photo of the personBs face.+++ !hus, like

it or not, under a strict reading of the %ow line, pedestrians ha'e relin0uished their e:pectationof facial-identity pri'acy. #gainst this mechanical reading, howe'er, a small revoltis stirring. Cn #ugust *)+), the %.9. 9ircuit in Onited States '. 6aynard held that police could not tracksuspects 'ia their cell phone records without a warrant.++* !he holding was despite the go'ernmentBs truthfulargument that a cell phone company could easily track any subscriberBs mo'ements by cataloguing the cell phonetowers that recei'ed the subscriberBs signal.++ 6aynard re'iewed the 9ourtBs important reasonable e:pectationI

cases++ and concluded" Cn considering whether something is Qe:posedB to the public . . .


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we ask not what another person can physically and may lawfully do but rather whata reasonable person e:pects another might actually do.I++2 ;ere the %.9. 9ircuit to re'iewstate-run F!, the in0uiry would then be whether %.9. pedestrians e:pect their fellow tra'elers to disco'er theiridentities 'ia F! software. !hree weeks after 6aynard, a district court followed its result, emboldened by se'eralrulings in recent yearsI that reclaim domains of personal pri'acy threatened by encroaching technology.++ !hough

the 6aynard reasoning is for now the minority vie$2++1 it reects a broadly felt

instinct to reclaim the reasonable e:pectation test as a guardian of Fourth#mendment rights in public spaces.++4 Face%recognition challenges oIer the#otential to #ush @aynard further into the mainstream

FRT violates the ,rst amendment destroys our right to

freedom of anonymous s#eech

(ro$n 1+ R #ssociate =rofessor of $aw, Oni'ersity of ?altimore Schoolof $aw. ?.#., 9ornellU @.%., Oni'ersity of 6ichigan (Kimberly &, #&T&P6C!P,F#9E=C&!S, #&% !HE 9T&S!C!O!CT&, GET. 6#ST& $. EJ. JT$. *+"*, *)+,http"//georgemasonlawre'iew.org/wp-content/uploads/*)+/)/?rown-;ebsite.pdfA

Separately, a line of First #mendment cases conDrms that the pri'acy threat posed by technologies like F!the go'ernmentBs unfettered identi,cationand monitoring ofpersonal associations, speech, acti'ities, and beliefs, for no MustiDable purposeisone of constitutional dimension. Cn fact, the Supreme 9ourt has steadfastlyprotected anonymous speech. !he 9ourtBs repeated pronouncements that the First#mendment1 safeguards the right of anonymous speechthat is, the right to distributewritten materials without personal identiDcation of the authorlargely came about in response to go'ernmentattempts to mandate disclosures in public writings. 4 Cn !alley '. 9alifornia,3 the 9ourt struck down a $os#ngeles ordinance restricting the distribution of a handbill in any place under any circumstances, which does notha'e printed on the co'er . . . the name and address of . . . the person who printed, wrote, compiled ormanufactured the same.I) Finding that the law infringed on freedom of e:pression, the 9ourt obser'ed that

anonymous pamphlets, leaets, brochures and e'en books ha'e played an

important role in the progress of mankindI by enabling persecuted groups tocriticiLe oppressi'e practices and other matters of public importance, particularlywhere the alternati'e may be not speaking at all.+ !he !alley 9ourt* relied on two casesthat linked anonymous speech with the ability to freely associate in pri'ate. ?oth in'ol'ed constitutionalchallenges to laws re0uiring members of the &ational #ssociation for the #d'ancement of 9olored =eople(#9=IA to furnish go'ernment oWcials with its member lists. Cn #9= '. #labama e: rel. =atterson, thelower court imposed a _+)),))) ci'il contempt Dne after the organiLation refused to comply with a court orderre0uiring production of its lists.2 !he Supreme 9ourt lifted the Mudgment and Dne, holding that immunity fromstate scrutiny of membership lists . . . is here so related to the right of the members to pursue their lawful pri'ateinterests pri'atelyI as to be constitutionally

Documents

Facial Recognition Affirmative - JDI 2015