Facial Recognition and the Second Amendment

How a Perfectly Legal Technology Undermines Our Rights

​From a risk perspective, facial recognition software is a mixed bag of good and bad outcomes. It has helped capture bank robbers, rapists, and murderers. Yet it is disproportionately bad at accurately identifying people of color and women of color in particular, leading police to arrest the wrong people. And above all, it is by definition a broad surveillance tool fundamentally at odds with the concept of individual liberty. Even the Government Accountability Office is worried, issuing two reports to assess risks and make recommendations.
 
In late 2023 GAO wrote:
 
“The use of facial recognition technology for criminal investigations presents unique questions about civil rights and civil liberties. For example, civil liberties advocates have noted that the use of facial recognition at certain events – such as protests – could have a chilling effect on individuals’ exercise of their First Amendment rights.”
 
Americans who care about their Second Amendment rights should be equally worried about this technology. The connection isn’t as obvious as it is with free speech, but the math works. Imagine:
 

1. You attend a rally in support of the Second Amendment.
2. The ATF and state police are there too, in disguise. They secretly work the crowd and pickpocket the wallets of everyone in attendance.
3. They then use the pickpocketed driver’s licenses to identify the attendees.

 
Oh, wait. The ATF and state police can’t pickpocket IDs because that would be a crime. But let’s try a slightly a different formulation:
 

1. You attend a rally in support of the Second Amendment.
2. The ATF and state police use facial recognition technology to identify everyone in attendance.
3. They then cross-reference the list of rally attendees with various gun registries to develop a short list of attendees who own firearms.
4. Worried about being on various lists, you eventually stop going to Second Amendment rallies.
5. If state or federal authorities decide to confiscate civilian weapons, they have a pre-constructed database ready to (ab)use.

 
Two scenarios. Both unconstitutional. Yet one is perfectly legal. The very use of facial recognition software is tantamount to having our wallets and IDs physically stolen. Somehow we have become inured to the difference.
 
“A search engine for faces,” is how Clearview.ai founder Hoan Ton-That cheerily described his company’s software to CNN Business. Clearview’s 50+ billion images, scraped from the Internet without anyone’s permission (do you recall being asked?) has been used by more than 2,000 organizations in 27 countries – including the Marshals Service, FBI, and ATF. Thank God none of those agencies have any interest in guns.
 
Oh, wait.
 
By the way, if you ever visit Clearview’s website, we recommend you decline all cookies.

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