The Real Problem With Banning Masks at Protests

PimEyes was almost instantly able to identify the author of this article without a mask on, retrieving high school yearbook photos and pictures from conference talks. With a mask on, however, PimEyes found other masked faces with similar skin tones, but none of them were the author’s.

In contrast, police have access to controversial tools like Clearview AI, which can identify people through a picture of their face “even in situations where their facial features are partially obscured, such as in low-light or when they are wearing masks.” Clearview’s facial recognition is only made available to law enforcement officials or governments, not the general public.

While universally available, off-the-shelf tools like PimEyes may eventually catch up with the law enforcement’s state-of-the-art software. In the meantime, mask bans seemingly make it easier for political opponents to identify and dox people while adding little value for police.

“There are lots of different tools that are available to law enforcement. Facial recognition is one of those tools that it’s about expediency,” said Dr. Nicole Napolitano, the director of research at the Center for Policing Equity. But it’s not without its pitfalls. Like PimEyes, tools like Clearview AI can make mistakes and incorrectly identify people, leading to erroneous arrests. “Police have become increasingly reliant on and then biased by what the model tells them,” said Napolitano.

“There’s no constitutional right to cover your face in public,” charged Meyers, the Manhattan Institute’s policing director.

Indeed, the legal landscape surrounding how law enforcement can use surveillance technologies has been hazy, explained Beth Haroules, a staff attorney for the New York branch of the American Civil Liberties Union, largely because the law hasn’t kept up with the pace with technological development.

For Haroules, the potential for omnipresent surveillance means people never really have a reasonable expectation of privacy—an important historic legal standard. “[Surveillance] cameras aren’t just the eyes of a police officer,” she said. “They are being monitored, perhaps 24/7, in real time. They’re feeding images into artificial intelligence, aided by algorithms that then kick out and match you to a number of faces and places that you’ve been.”

That legal haze, though, may finally be starting to clear.

This summer, a federal appeals court judge declared that geofence warrants were violations of the Constitution’s protections against unreasonable searches and seizures, though this decision only holds in Texas, Mississippi and Louisiana. Similarly, a New York judge ruled warrantless phone searches at border crossings are unconstitutional. While the ruling only applies to a portion of New York, it does cover JFK, one of the country’s busiest airports.