The Department of Homeland Security has a scary vision for expanding face recognition surveillance into our everyday lives, threatening a dystopian future in which the technology is used throughout our public spaces to scrutinize our identity, check us against watchlists, record our movements, and more. Work on building the infrastructure for this pervasive monitoring has already started, with U.S. Customs and Border Protection currently operating a face recognition system at the gates of departing international flights.  

There is ample reason to be alarmed. Face recognition technology is riddled with bias and inaccuracies, and CBP’s program will likely result in harms ranging from missed flights to lengthy interrogations, or worse. And more broadly, face recognition technology threatens to supercharge Homeland Security’s abusive practices, which have included detaining and interrogating journalists reporting on border conditions, targeting travelers based on national origin, and terrorizing immigrant communities.

Here in the United States, DHS has already laid out — and begun implementing — a very clear plan to expand face surveillance. If we allow the agency to move forward with its plan, there are all too many reasons to think that will lead our society down a dangerous path.

Here is what that pathway looks like, in five steps:

1. Expanding CBP’s existing face recognition system to TSA checkpoints nationwide

CBP’s current program, called the Traveler Verification Service (TVS), is limited to international departure gates at a growing number of U.S. airports. Departing international passengers pose for a photograph at the aircraft gate. The photo is then compared to a pre-assembled gallery, stored in the cloud, of government mug shots (mostly passport and visa photos) of all the passengers registered for that flight. Face recognition is used to make sure the photo of the person posing matches someone in the gallery.

But that’s just the beginning. CBP has started a “demonstration program” aimed at integrating its TVS face recognition program into TSA security checkpoints for passengers who have tickets for “specified international flights.” The TSA is also looking at using CBP’s infrastructure to roll out face recognition for PreCheck travelers. Extending the TVS program beyond aircraft gates to TSA checkpoints and elsewhere would mean building an infrastructure of cameras and devices that could then be scaled up, making it much easier for face scanning to expand.

2. Putting all fliers through the face tracking system

Once CBP’s infrastructure is in place at TSA checkpoints and elsewhere, the government has plans to start tracking the faces of more and more of the over two million passengers who pass through the TSA’s security checkpoints every day — and eventually all. A strategic roadmap that the TSA issued in 2018 directs the agency to move beyond PreCheck passengers and push the general traveling public into face recognition systems. The goal is for these systems to be integrated with other parts of DHS as well as industry partners

3. Making face scans mandatory

Right now, CBP says that submitting to its face surveillance system is optional for American citizens, butthere is ample reason to suspect that the government will want to make the face recognition checks mandatory for all. CBP has already said it plans to make face recognition mandatory for noncitizens. A very similar process happened with the TSA’s body scanners: When they were new and controversial, the agency emphasized that they were voluntary, but after controversy died down, TSA quietly made them mandatory.

4. Running faces against watchlists

Once face surveillance becomes entrenched at TSA checkpoints, there will be even more pressure to turn those checkpoints into broader law enforcement checkpoints where people are subject to criminal, immigration, and intelligence watchlist checks. Already CBP said it planned to start running some passenger photos through a biometric watchlist. As such checks expand, pressure will build to try to identify everyone from parole violators to deadbeat dads. And as the number of watchlist checks increases, so would the number of random Americans who get mistaken for somebody on those watchlists.

5. Expanding beyond the airport

If face surveillance becomes pervasive in airports, we can expect to see it expand outward. Airport bag searches were new in American life when they were first introduced in the 1960s and 1970s, and since then, they’ve expanded throughout American life to many office buildings, schools, museums, sports stadiums, and public gatherings. Face recognition, too, is likely to follow this path toward the “airportization of American life.”

In China, the government has installed face surveillance checkpoints at key ports of entry to track and target ethnic minorities, and monitor people across the country. We don’t want to see anything like that happen in our country. CBP’s TVS program is the first government face recognition checkpoint in American history, and if we decide to let its deployment continue, where will that lead? We don’t have to wonder because the government has already told us much of the story. But there’s still a lot more the public needs to know, which is why we’ve asked the government to turn over documents about the program’s implementation and future. At the same time, we’re calling on Congress to press pause on the use of face surveillance for law enforcement and immigration enforcement purposes before it forever alters our free society.

An ACLU white paper on the expansion of CBP’s face recognition program is available here.

The federal government is once again trying to force Apple to weaken the security of millions of iPhones. On Wednesday, President Trump issued a call from Davos, Switzerland for Apple to assist law enforcement in unlocking iPhones. Last week, Trump made the same demand of Apple, tweeting that the company should unlock cell phones as a quid pro quo for any benefits it enjoys as a result of favorable U.S. trade deals.

Buying off private parties to do police bidding is neither good trade policy nor good law enforcement. Regardless, President Trump’s attorney general, William Barr, has made this fight one of his signature issues. In July and October of last year, he gave speeches that pushed for tech companies to design their products to ensure law enforcement access to our secured communications. This month he initiated a public spat with Apple, criticizing the company for failing to unlock the Pensacola shooter’s iPhone.

But there is considerable global demand that communications software provide strong encryption to protect users — and for good reason. Encryption is our strongest defense against abusive governments, hackers, and organized crime. Encryption also provides anonymity to dissidents, whistleblowers, and human-rights defenders so they can freely express themselves, organize, and expose governmental abuse without fear of retribution.

Requiring technology companies to build a government backdoor into our encrypted communications would break that crucial defense, empowering repressive governments like China and Iran to obtain and abuse private communications.

This is not just about the Pensacola investigation, or any one criminal case. Satisfying the government’s demand would undermine the security of millions of other iPhone users, and make them all more susceptible to government abuses, identity thieves, credit card fraud, and other criminal activity. If technology companies build security weaknesses into their products, unwanted attackers will use those weaknesses for crime and abuse.

This is why Apple went all in resisting the FBI’s effort four years ago to unlock an iPhone (and the ACLU supported Apple), why Google rapidly deployed secure encryption across all its data streams, and why Facebook is making end-to-end encryption the default on WhatsApp, Messenger, and Instagram.

But law enforcement and intelligence agencies have not given up. Attorney General Barr’s public relations campaign implies that the Department of Justice will only seek information with a lawfully-issued search warrant. At the same time, the DOJ has been telling federal courts across the country that it does not need a search warrant to obtain our emails or other private data. Nor are all of the Department’s search warrants legally justified. The FBI has been spying on Black Americans, including arresting and detaining one man for his First Amendment-protected Facebook posts.

Encryption providers have the law on their side. The Fourth Amendment generally requires a search warrant before police can seize and read our private correspondence. A warrant gives police permission to search, but it doesn’t entitle them to plaintext information that doesn’t exist. Moreover, there is no law in the U.S. requiring individuals to ensure our private communications are available to law enforcement.

Technology providers also have a number of government agencies on their side. The Commerce and State Departments have argued internally that mandating encryption “backdoors” will have negative economic, security, and diplomatic consequences. The Federal Trade Commission, charged with protecting consumer privacy, pushes encryption as a means to secure consumer data from theft.

Former government officials are also pushing back on DOJ’s claims. Jim Baker, who was the FBI general counsel responsible for the agency’s litigation against Apple, recently wrote that it was time to accept that end-to-end encryption is here to stay, citing in part the fact that “relevant cybersecurity risks to society have grown disproportionately over the years when compared with other risks.” The former director of the National Security Agency and the Central Intelligence Agency, Michael Hayden, argues that encryption backdoors will empower authoritarian governments without helping law enforcement, as criminals will simply switch to services designed overseas.

Nevertheless, the Department of Justice has doubled down — often in secret and under sealed legal proceedings — on its efforts to compel device manufacturers and social networking companies to undermine the security promises they make to us. For instance, in 2018, Reuters reported on a failed FBI attempt to force Facebook to wiretap encrypted voice conversations on Facebook Messenger. The public to date doesn’t know exactly what the FBI demanded that Facebook change about Messenger, how that change might affect the security and privacy of other Messenger users, why the court denied the request, how many other times the FBI has made such a request, or how many other companies have received one. We also don’t know who has complied with the government’s requests in the past, or under what legal interpretation. The ACLU and EFF have sued to unseal the court opinion, and will be in court on April 3rd to argue that the law should be public in a democracy.

The government’s attempts to force developers to build insecure products, or to undermine existing security measures, as it is attempting to do with Apple right now, are dangerous and unlawful. Law enforcement does not and should not have the authority to commandeer innocent third parties into becoming its undercover agents, spies, or hackers. The Department of Justice and members of Congress should abandon attempts to undermine our security, and instead focus on policies that encourage widespread adoption of strong encryption. We should be leading the global community by example, making it clear that the United States supports and encourages secure infrastructure for our society, and that we consider excessive surveillance powers held by anyone a problem — not a solution.

Liberty and equality are everywhere under attack. And that’s why the work of the American Civil Liberties Union feels more precious to us than ever before. The ACLU lawyers and staff are the brave souls who suit up, blast off, and do what they can to divert and repel all those incoming meteors, or blow them right out of the sky. We admire them. We admire them the way you must admire people who devote themselves to doing, to the utmost of their ability, any thankless, impossible, and absolutely essential job.

Liberty and justice for all. We used to stand up with our classmates every morning and timelessly pledge liberty and justice for all, even and especially for those (as the Supreme Court, agreeing with the ACLU, ruled in West Virginia State Board of Education v. Barnette) whose consciences rebel at being compelled to pledge allegiance to a flag or to a country “under God.” The Bill of Rights protects pledgers and nonpledgers alike, but of course it is only the nonpledgers—the contrarians, the cranks, the nonconformists, the radicals and fanatics, the outsiders and the ostracized, the powerless and unpopular and imprisoned—who ever really need its protections. They also tend to be the ones least likely to receive those protections—not without a fight, anyway. That’s where the ACLU comes in.

The history of the ACLU is one of struggle, combat, of marginalized people and unpopular causes, of troublemakers and conscientious objectors, a history of battle and strife. But it is also the history of the very best our country has to offer to its citizens and, by way of example, to the rest of the world: the strong, golden strand of the Bill of Rights and the ideals it embodies, often frayed, occasionally snarled, stretched at times to the breaking point, but shining and unbroken down all the years since 1789. The ACLU holds the government, the courts, and the nation to their avowed and highest standard, insisting on the recognition of the protections the Constitution affords to every American, no matter how marginalized, no matter how unpopular the cause, even if the people it protects sometimes despise the freedom it represents.

As American Jews in our fifties, we both remember, powerfully, the moment we each first understood the austere and lonely fight of the ACLU, the thankless road to freedom on which it plies its trade. It was 1977, when the ACLU took on the case of the local branch of the American National Socialist Party, whose members wanted to hold a march along the main street of Skokie, a predominantly Jewish suburb outside Chicago. We remember wrestling with the difficult idea that the ACLU could be on the side of good (the First Amendment) and evil (Nazis) at the same time. To understand the vital role that the ACLU plays in American society requires a nuanced understanding of the absolute value of freedom of speech, freedom of assembly, freedom from unwarranted search and seizure, of the right to due process and equal justice under the law, even—again, especially—when those rights protect people we find abhorrent or speech that offends us.

Nuance unfortunately seems to be in very short supply nowadays. In the pages of Fight of the Century: Writers Reflect on 100 Years of Landmark ACLU Cases, we have collected essays by some of our country’s finest writers (ranging from Marlon James and Ann Pachett to Elizabeth Strout and Viet Thanh Nguyen, and many more)—not just because writers are and have long been among the principal beneficiaries and guardians of the First Amendment but also because they traffic, by temperament and trade, in nuance and its elucidation, in ambiguity and shades of gray. We turn to writers, here and in general, to help us understand and, even more, grasp both ends of ambiguities, to expand the scope of our vision to encompass the whole gray spectrum of human existence, in all its messy human detail.

Enjoy.