Drone Surveillance of Protests Raises Concerns For Free Speech Rights

A large fire burned in Minneapolis on May 28 in the wake of the killing of George 

Floyd while in police custody.

PHOTO: DAVID JOLES/STAR TRIBUNE/ASSOCIATED PRESS

A Predator B drone at Holloman Air Force Base in New Mexico last year.

PHOTO: HOLLANDSE-HOOGTE/ZUMA PRESS

The Wall Street Journal asks an important question:

Does high-tech surveillance interfere with the right to free speech?

If by "high-tech" surveillance we are talking about drones, I don't see it. If we are talking about wiretapping, then yes.

Betsy Combier, betsy.combier@gmail.com
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Drone Surveillance of Protests Comes Under 
Fire

Democratic lawmakers and some conservatives call for a halt in 

monitoring peaceful demonstrations against police brutality

by John D. McKinnon and Michelle Hackman, Wall Street Journal, 6/10/2020

WASHINGTON—The government’s use of cutting-edge surveillance to monitor
protests is coming under scrutiny by lawmakers and activists, including conservatives
who see it as a threat to constitutional rights, amid a national rethinking of the role
of police.
The issue came to the fore after a Predator drone operated by U.S. Customs and
Border Protection was observed flying over protests in Minneapolis on May 29 in the 

wake of the killing of George Floyd in police custody there. Drone flights have also
also been reported over San Antonio and Detroit, according to a letter Tuesday from about
three dozen House members.

The letter, which called for a halt to surveillance of peaceful protests, also cites reports of 
surveillance flights by other agencies using conventional aircraft over Washington, D.C.

The letter, which called for a halt to surveillance of peaceful protests, also cites reports of surveillance flights by other agencies using conventional aircraft over Washington, D.C.

“Americans have a healthy fear of government surveillance that started at the founding of our country and has continued to modern times,” said the letter signed by lawmakers including Reps. Anna Eshoo (D., Calif.) and Bobby Rush (D., Ill.).

While the congressional scrutiny so far is coming from Democrats, some conservatives are troubled as well. “It’s disturbing to see tools built to gather military intelligence being used to watch U.S. citizens,” said Billy Easley II, a senior policy analyst at Americans for Prosperity, a conservative organization.

“Drones should not be used by the government to monitor or collect data on First Amendment activity,” he said. ”They should only be used when there is a threat to life or property, and the federal government should be transparent about the circumstances of their use.”

CBP confirmed that the agency flew a Predator over Minneapolis, but disputed the claim in the congressional letter that drones were flown over Detroit and San Antonio. The Minneapolis drone flight was first reported by the Project on Government Oversight, a nonpartisan research group.

CBP also used helicopters and planes to monitor protests, an agency spokesman said. He said the video captured is shared with local law enforcement to determine the size and movements of protests, and no attempt is made to identify individual protesters.

A second CBP official said the images provide “situational awareness.” He added: “If you’re law enforcement…it’d be helpful to know if it’s 20 people or 2,000 people.”

In their letter Tuesday, lawmakers also cited reports that other government agencies including the Federal Bureau of Investigation and the Air National Guard are involved in protest surveillance.

In a statement, the FBI said it respects the rights of Americans to peacefully protest, and said its efforts “are focused on identifying, investigating and disrupting individuals that are inciting violence and engaging in criminal activity.”

The Air National Guard didn’t respond to a request for comment.

Federal officials including Attorney General William Barr have said their efforts during the protests have been focused on apprehending and charging what he called “violent radical agitators.” Mr. Barr has said violence by extremist groups during the protests amounts to domestic terrorism.

The surveillance has alarmed those who worry that federal, state and local agencies could be deploying an array of sophisticated tactics and techniques—including high-zoom surveillance cameras, facial-recognition software, cellphone monitoring devices and social-media tracking techniques—to monitor civilians engaged in peaceful demonstrations.

“No government agency should be facilitating the over-policing of the black community, period,” said ACLU senior legislative counsel Neema Singh Guliani in a statement. She added that the CBP’s “use of military technology to surveil protesters inside U.S. borders is deeply disturbing, especially given CBP’s lack of clear and strong policies to protect privacy and constitutional rights.”

While technology such as smartphones has helped document police violence, activists say it also can hamper protesters’ efforts to bring about change, by scaring some away.

The surveillance threatens to chill protesters’ First Amendment rights, said Saira Hussain, a staff attorney at the Electronic Frontier Foundation, a digital-rights organization that has focused on high-tech surveillance.

“Why give law enforcement every single possible tool to use at its fingertips?” she said, adding: “I think this is a time of reckoning to figure out, do we want these tools to exist?”

Write to John D. McKinnon at john.mckinnon@wsj.com and Michelle Hackman at Michelle.Hackman@wsj.com

Human Dignity is a Constitutional Principle

New York Times

Dignity Is a Constitutional Principle

By BRUCE ACKERMANMARCH 29, 2014

LINK

President Lyndon B. Johnson signing the Civil Rights Act on July 2, 1964, in
the East Room of the White House. At his right shoulder is Senator Hubert H.
Humphrey

WITH gay marriage litigation moving forward at warp speed — federal judges have struck down five state bans on same-sex marriage since December — we may soon witness one of the worst shouting matches in Supreme Court history. Passions were already running high last June, when a divided court struck down federal, but not state, laws defining marriage exclusively as a relationship between a man and a woman. Justice Antonin Scalia denounced the majority opinion, which cited the demeaning and humiliating effects of the Defense of Marriage Act, as “legalistic argle-bargle” lacking any basis in our constitutional tradition. Writing for the five justices in the majority, Justice Anthony M. Kennedy countered that the assault on human dignity should be decisive in condemning the statute as unconstitutional.

In making this “dignitarian” move, Justice Kennedy relied principally on his two earlier pathbreaking opinions supporting gay rights, in 1996 and 2003. He did not link his guiding philosophy to the broader principles hammered out during the civil rights revolution of the 1960s. Yet that constitutional legacy would strongly support any future Supreme Court decision extending Justice Kennedy’s reasoning to state statutes discriminating against gay marriage. Indeed, the court should reinforce its dignitarian jurisprudence by stressing its roots in the civil rights revolution — and thereby demonstrate that it is Justice Scalia, not Justice Kennedy, who is blinding himself to the main line of constitutional development.

Consider the great speeches made 50 years ago today as the Senate began its decisive debate on the Civil Rights Act of 1964. The bill’s floor managers were the Democrat Hubert H. Humphrey and the Republican Thomas H. Kuchel. As they surveyed the scene on March 30, 1964, it was far from clear that they had the 67 votes required to break a filibuster led by Southern senators. So they were determined to make their case to the larger public and mobilize popular support for a sustained effort to win a cloture vote.

As The Washington Post reported at the time, the two floor leaders dominated the first day’s proceedings with elaborate presentations that set the stage “for a serious no-nonsense debate” on the fundamental issues. Humphrey began with a remarkable three-and-a-half-hour speech that introduced the central theme of humiliation by comparing two travel guidebooks: one for families with dogs, the other for blacks. “In Augusta, Ga., for example,” Humphrey noted, “there are five hotels and motels that will take dogs, and only one where a Negro can go with confidence.” He argued that if whites “were to experience the humiliation and insult which awaits Negro Americans in thousands and thousands of such places, we, too, would be quick to protest.” Kuchel followed up with a second major presentation, emphasizing the “urgency” of ending the “humiliating forms of discrimination” confronting blacks.

On other occasions, Humphrey repeatedly linked this anti-humiliation principle to the larger aim of securing “freedom from indignity” for blacks and other groups. This link was further reinforced by President Lyndon B. Johnson. “We cannot deny to a group of our own people,” he argued, “the essential elements of human dignity which a majority of our citizens claim for ourselves.” In making their case to the American people, these leaders succeeded in pressuring Senate fence-sitters to close down the filibuster, on June 10, after it had monopolized the floor for more than two months.
But they failed in their larger aim. Their elaborate speeches were also addressed to future generations, articulating fundamental principles that Americans should consider in defining the terms of constitutional equality. Yet as Justice Scalia’s denunciation of Justice Kennedy’s opinion illustrates, America’s lawyers and judges are in danger of consigning these views of Congress and the president to legal oblivion. They seem to suppose that the only civil rights opinions worth studying are those of the Warren and Burger courts — even though the judicial initiatives of those courts would have gone nowhere without the mobilized support of the political branches and the American people.

This is a mistake. To be sure, the judges of the civil rights era also emphasized the link between institutionalized humiliation and the constitutional requirements of equal protection. Most famously, Brown v. Board of Education declared school segregation unconstitutional precisely because it stigmatized blacks, generating “a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.” Yet once we recognize that Congress and the president broadened and deepened the nation’s commitment to Brown’s anti-humiliation principle, we can gain a larger perspective on contemporary civil rights struggles.

This point applies not only to gay marriage but also to sexual harassment. When the courts condemn “harassment” on the job or in schools, they are using a different word to describe the very same dynamics of institutionalized humiliation repudiated by the framers of the Civil Rights Act.

This constitutional legacy should also shape our understanding of future civil rights struggles. Consider the situation of undocumented immigrants as they seek to attend school, get a job or drive to the supermarket. They face pervasive humiliation in sphere after sphere of social life. Does this not amount to a systematic denial of the “equal protection of the laws” guaranteed by the Constitution to all persons “within the jurisdiction” of the United States?

Fifty years ago, our parents and grandparents faced the same question when confronting the humiliations imposed on blacks. As we search for guidance on the great constitutional issues of our own time, the place to begin is with the words of Humphrey as he explained why Americans could no longer “justify what we have done to debase humanity.” He argued that we “do not have to be lawyers to understand, ‘Do unto others as you would have them do unto you.’ ”


Bruce Ackerman is a professor of law and political science at Yale, and the author, most recently, of “We the People, Volume 3: The Civil Rights Revolution.”