0:00

First Contact with Lori Siegel is a production

0:03

of Dot Dot Dot Media and I Heart Radio.

0:10

There's a great quote on the A C l U website.

0:13

The fact that technology now allows an individual

0:15

to carry such information in his hand does not make

0:17

the information any less worthy of the protection

0:19

for which the founders fought. Exactly.

0:22

I like to talk about, you know, one of the whole points

0:24

of the Constitution adding the fourth Amendment,

0:26

which is the protection of privacy, is

0:28

they wanted to protect what was in Benjamin Franklin's

0:30

disk. Nobody should know if he was

0:32

writing some things that were anti government, and

0:35

we now have that on our cell phone, so of course,

0:37

but that's where I think that a lot of the protection

0:40

of civil liberties is applying our

0:42

fundamental principles in different circumstances.

0:56

We are in a moment of reckoning as

0:58

we enter an age of ubiquitous surveillance,

1:01

questionable data collection practices,

1:04

even algorithms that discriminate.

1:07

It's minorities, especially black

1:09

and brown communities, that are disproportionately

1:11

effective. Over the last months, as

1:13

the nation has grappled with a conversation around

1:16

police brutality, we've seen predator

1:18

drones used for aerial surveillance at protests

1:21

facial recognition technology that wrongfully

1:24

accused a black man of a crime he

1:26

didn't commit, and it wasn't a coincidence.

1:29

Reports say the tech is a hundred times

1:31

more likely to misidentify African,

1:33

American and Asian people, and

1:36

as COVID nineteen continues to spread,

1:39

there are serious questions being raised

1:41

about contact tracing apps and how

1:43

that data collected could be misused.

1:46

These issues raise ethical questions about

1:48

technology and its impact on our civil

1:51

liberties, equality, and the future

1:53

of our country. For Susan

1:55

Herman, it is an extraordinary

1:57

time to be sitting in her seat as

1:59

president of the a c l U. Over

2:02

the years, the American Civil Liberties

2:04

Union has filed lawsuits fighting for free

2:06

speech, reproductive rights, and privacy.

2:09

But as technology continues to muddy

2:11

the waters, the trade offs become more

2:13

complicated. Where do we draw the

2:15

line between security and privacy and

2:18

how do we prevent technological innovation

2:20

from outpacing the law. I'm

2:22

Laurie Siegel and this is first contact

2:28

Susan. Thank you for being virtually

2:30

with me today, but thank

2:32

you for inviting me, Laurie. Yeah,

2:35

you know, I I always start out these interviews

2:37

with our first contact. I talked

2:39

to guests about how we met, and

2:42

we don't really have a first contact. We've never met

2:44

in person, but we met on an email

2:46

chain because we were going to do an interview together

2:48

for something else and it and it fell through.

2:50

So I said, you've got to come on the podcast because

2:52

you are just sitting in such

2:54

an extraordinary seat at

2:57

such an extraordinary moment in

2:59

time, so that it's our first contact.

3:01

Well, thanks, It just seems to me like our first contact

3:04

is total serendipity. Yeah, exactly,

3:07

so you know, to get started. You've been the

3:09

president of the a c l U since two thousand

3:11

and eight, and I said this before, but

3:14

you know, what an extraordinary time to

3:16

be sitting in your seat. You know, how are you

3:18

feeling? Oh my, it's just sort

3:20

of overwhelming. You know, as president, I'm essentially

3:22

chair of the board, so you know, I'm not the

3:24

one doing the day to day work as all

3:27

of the members of our staff are. But to

3:29

be a member of the a c l U staff right now

3:31

is just it's mind boggling because

3:33

we had, you know, a lot of work that we

3:35

were already doing before two thousand and sixteen,

3:38

with all of the states making worse and worse

3:40

laws about reproductive freedom and voting rights

3:42

and immigrants rights, and you know, all sorts of other

3:45

things. Then can the election, and

3:47

since that we have brought a hundreds

3:49

and seventy three legal actions against the Trump

3:51

administration for things like

3:53

family separations and the travel ban and

3:56

prohibiting trans in the military. Then

3:59

in March, COVID hit and

4:01

at that point, you know, since then, we've also brought

4:03

over a hundred lawsuits, including

4:06

with a hundred lawsuits just about people who are

4:08

incarcerated in jails and prisons and ice

4:10

attention and who are just in

4:12

a hot spot. You know, they have no control over

4:14

whether they can social distance, and

4:17

so we've been working very hard to get vulnerable

4:19

people out of you know, those terrible situations

4:23

basically death traps. Plus the COVID

4:25

also led to a number of states opportunistically

4:28

restricting things like freedom of abortion,

4:31

declaring abortion to be a non

4:33

essential procedure so people could just wait

4:35

until the pandemic is over to get an abortion

4:38

right. And voting rights has also

4:40

just been a really fraught area

4:42

right now because all the restrictions

4:44

on voting and the ways in which the vote was becoming

4:47

distorted have just

4:49

been magnified

4:51

by all the difficulties, and so

4:54

there's a lot to talk about. So I was about to say, what what

4:56

what I'm hearing from the is you're sleeping really well at night.

4:58

You know, there's no work

5:00

to do, almost nothing to do the

5:02

stuff that they're just sitting around polishing their nails.

5:05

Yeah, So I mean, like, take me to March, like

5:08

coronavirus hits. You have been involved

5:10

in some of these monumental cases

5:12

that have just shaped society and our civil

5:14

liberties, like coronavirus

5:17

hits, And now you know, we have a

5:19

little bit I don't even think we have the luxury of

5:21

perspective at this point, but we have a little bit

5:23

more perspective. But like, take me to March,

5:25

Like in your role at

5:27

this extraordinary moment, Like what

5:30

was going through your head? What were you concerned

5:32

about at the time? Well,

5:34

you know, what are the first concerns is just you have

5:37

to close the office. So the first concern is

5:39

how can people do all this u massity?

5:41

It increases the work and makes it more

5:43

difficult to do the work. So we

5:45

just had to really make sure that our technology

5:48

was was up to doing things. So one thing that the

5:50

a c l you did was to buy new laptops for

5:52

some stuff. People who are going to be working and

5:54

you have to worry about, you know, how the technology

5:57

is working. Um, which has

5:59

been a question for us every time there's

6:01

something really big hits. When the travel

6:04

band hit, there were so many people wanting

6:06

to donate to the a c l U. There are website

6:08

crash so even things

6:10

like that, you know, that's you know, like number one of how

6:12

do you handle this? We have been fortunate

6:14

so far that the a c l U is so well

6:17

managed and we had not spent every

6:19

penny that all of our donors had given

6:21

us up until that point, so we have not had to lay

6:23

people off, which is very fortunate

6:25

because, as you're saying, there's more than enough work

6:27

to do. But yeah, that's the first concern of just

6:29

you know, how do you keep the organization up to speed

6:32

and ready to do you know what. Staff

6:34

members now need to be doing an incredible amount

6:36

more work. But for some of them

6:39

it's well, they're juggling a toddler

6:41

and a dog. Yeah, can

6:43

you give me a run through of some of the cases

6:46

that you've been involved in. That correct me if I'm

6:48

wrong. You started out as an intern, right

6:51

and really just worked your way up.

6:53

I mean, I can imagine you've been involved,

6:55

and I know you've been involved in some pretty extraordinary

6:58

cases. To give listeners some text,

7:00

can you explain some of the cases that kind of stick

7:02

out to you? Well, I wasn't

7:04

intern for the a c l U back, you know,

7:06

in the nineties seventies, you know, around the

7:08

time when I was in law school. And just to

7:10

make sure that everybody understands, I don't

7:13

actually work at the a c l un. My day

7:15

job is I'm a law professor, and I

7:17

don't generally work on the cases. What I'm

7:19

generally doing is we run

7:21

the organization. But I'll tell you

7:23

I think, you know, it would be interesting start

7:26

um. But the first a c l U case that I actually

7:28

did work on, which was while I was a law student, and

7:31

this was the case. One of my connections

7:33

with the a c l you originally was that one of my law

7:35

professors in the first year was connected

7:37

with the New York Civil Liberties Union and

7:40

he had some clients who came to him who

7:42

were graduate students at stony Brook

7:44

on Allowland, and they had just discovered

7:46

they were not allowed to live together. They had rented

7:48

a house together. There were six of them, and they

7:50

had just discovered they weren't allowed to live together

7:53

because there was an ordinance in their village village

7:55

called belt Hair, that prohibited

7:57

more than two persons unrelated by blood,

8:00

marriage or adoption from living together.

8:02

So, you know, they were pretty shocked. And it turned out

8:05

that under the laws

8:07

it was at the time, by the time ye they were talking

8:09

about this, they were liable

8:11

for all sorts of criminal fines and punishment.

8:14

It was really in a very heavy stuff. So

8:16

I started working on that case with my law professor

8:19

and um we went to a

8:21

federal judge to ask

8:24

for a temporary restraining order, which

8:26

means to just until we had litigated

8:28

whether or not that was a constitutional thing to

8:30

do, to tell people who they couldn't couldn't live

8:32

with, that the village should not be allowed

8:35

to either kick them out of their their house

8:37

or to you know, start mocking them up because

8:40

you know, they owned too many fines for having

8:42

been illegal residents. So

8:45

the judge ended up signing the order, and

8:47

he was signing the order about that. And then one

8:50

of the ways they which actually the original

8:52

way in which our clients had discovered that they

8:54

were illegal residents, was that they had applied

8:56

for residents only beach permit and

8:58

they were told they couldn't have one because they were illegal

9:00

residents. So the judge who we had,

9:02

the district judge, who was a very nice man, looked

9:05

at the order we had written out and he said, well, you know,

9:07

it's the summer. Don't your clients want to go to the beach

9:09

while the litigation is pending? Do

9:11

you mind if I write that in that they have to

9:13

be allowed to park in the parking lot of the beach.

9:16

So we said, sure you, that's very nice,

9:18

so he wrote that in. Then, as the junior

9:20

member of the team, I was sent out to

9:22

explain to our clients, to show them the order and

9:25

explain to them what was going on. And they

9:27

gave me a tour of you what the village

9:29

looked like in the residents only beach and

9:31

the minute the wheels of their car hit the parking

9:34

lot is very large. Your fierce looking man

9:36

comes striding across and says, what are you doing

9:38

here? You're not allowed to be in this parking lot, and

9:41

they all look at me, and I'm thinking,

9:43

what am I. I'm like, you know, twenty something, I'm not very

9:45

tall, and what am I supposed to do with this large

9:47

man who doesn't want us in there in his parking lot?

9:50

And then I remembered that I had a federal court order

9:52

right on my person, so I kind of drew

9:55

myself up, but I showed him my federal court order

9:57

and I said, well, I'm with the New York

9:59

Cibiliberties Union kind of, and I

10:01

have a federal court order saying that these people

10:03

are allowed to be in this parking lot and go

10:05

to the beach. And he melted that

10:09

that was I think in one of the points at which I thought,

10:11

wow, you know this, this is really powerful

10:13

stuff. Yeah, you saw that

10:16

there was my first day. Yeah, exactly,

10:18

that's great. And I saw I read that some of your

10:21

your earliest memories of speaking

10:23

up to authority involved I think a dispute

10:26

over a book at your school library.

10:28

Yeah, that's right, Even before the Belchair case.

10:31

My first civil liberties hero was my mother.

10:33

So when I was in third grade, we were doing

10:36

a school play about a story called Johnny

10:38

Tremaine about a boy in the American Revolution,

10:41

and I, like, I thought the play was interesting. Players

10:43

don't have that many words. And we were told

10:46

that this was based on the book. So I went

10:48

to my school library, my public school library,

10:50

and I asked to take out the book, and the

10:52

librarian said, oh, you can't take out that book,

10:54

dear, that's in the boys section. And

10:57

I was I was surprised to find this out.

11:00

I've been reading books in the girl's fiction, which were

11:02

all collections of fairy tales and

11:04

biographies of president's wives, but

11:06

it had never occurred to me that I wasn't allowed to take

11:08

out a book from the boys section. So

11:10

I went home and I told my mother about this. You're

11:13

just thinking, you know, that's the way things are, and she just

11:15

exploded and she called

11:17

the librarian the next day and say, how dare you

11:19

told my daughter? You know what she's not allowed to

11:21

be. So the librarian told

11:23

me that from then on, I could take out any

11:25

book I wanted, and you know, not long

11:28

after that, they changed the policy for everyone.

11:30

So, you know, there was another example of how you

11:32

know, you can kind of speak up to authority when

11:34

they kind of tell you who to be and prevent

11:36

you from making your own choices? Were

11:39

you always like that? Well, you know, that's

11:41

third grade, and I feel like yes, I

11:43

think for most of us are values of when

11:46

we're pretty young. Yeah, so you know,

11:48

seeing my mother do that, I'm sure you would

11:50

have had an impact on me. Yeah,

11:53

that's such a good story. And did you I mean, did you

11:55

always know you wanted to go into law? No,

11:58

I actually really didn't because having grown

12:00

up as a woman during that era, my father was

12:02

a lawyer and he always used to talk about

12:04

the fact that law was really not a good profession

12:06

for women. Why would you want to do that if you could be an

12:08

English teacher and help the summer off, you

12:11

take care of your children, so you have to be a

12:13

while. I graduated from college and then spent a

12:15

few years doing other things and then decided

12:17

to go to law school. Well,

12:19

I mean, it's it's so interesting and

12:21

now kind of seeing where you're at

12:24

um and seeing this moment, it

12:26

does feel like a moment. And I was looking at something

12:28

you said about you know, this feels like a moment. We

12:31

can be optimistic because so

12:33

many Americans are beginning to really understand

12:36

the scope and the depth of structural racism.

12:38

It certainly feels, you know, I'm based

12:40

in New York City. You can just feel it right

12:42

on the streets with the protests, and

12:45

they hear the sirens and the helicopters,

12:47

you know, as we sit here, um and

12:50

we hear you know, your rich history

12:52

and covering and caring about these issues.

12:54

What is the challenge for you guys ahead,

12:59

Well, you know, the channel on that particular subject

13:01

is that this is work that we had already

13:03

been doing. One of our top priorities

13:06

for the past several years has been trying

13:08

to break our addiction to mass incarceration,

13:12

which, as everybody is now really coming to terms

13:14

with, has been really it's a system

13:16

that has disproportionately affected people on

13:18

the basis of race and income

13:21

and disability. A quarter the people

13:23

who are arrested or people who are mentally ill,

13:26

and our feeling is that the system has

13:28

been fundamentally broken and misguided

13:30

for a long time. So part of

13:32

what we're trying to do with this moment is to capitalize

13:34

on the fact that people want to look at what the police

13:36

do. We're trying to encourage people

13:38

to look beyond the police it's not just you.

13:41

Who are the police arresting, and how are they treating

13:43

the people they arrest. I think

13:45

behind that is the question of what do we

13:47

really want to treat as a crime. So

13:50

when you treat all sorts of very minor

13:52

misconduct as a crime, you're

13:55

really setting up a situation where they're going to

13:57

be more contacts and therefore potentially

13:59

more practruary and discriminatory context.

14:02

So, if you think about it, Eric Garner ended

14:05

up dying because he was selling single

14:07

cigarettes on which the tax had not been

14:09

paid. George Floyd.

14:12

The basis for that encounter was that they thought

14:14

he might be passing a counterfeit twenty bill.

14:17

So I think that if you look at why

14:20

are we criminalizing some of the things we criminalize,

14:22

especially if you're talking about people who are mentally

14:25

ill and are having problems.

14:27

Do we really want the police to be the people

14:29

who are the first responders to people

14:31

who are having a mental health crisis or

14:34

is there some more effective way to deal

14:36

with that that would avoid putting

14:38

those people into the criminal justice system,

14:40

which isn't really good for anyone, And

14:42

to maybe recommit, reallocate

14:45

some of the resources we're using on arresting

14:48

people and locking them up to actually

14:50

dealing with the mental health crises. You

14:52

have mental health treatment. So instead

14:54

of viewing everything as all

14:56

dysfunction as a matter of policing, why

14:59

don't we spend more. I'm reinvesting and

15:01

to try to prevent more dysfunction. It's

15:03

sort of like the old thing. You know, if you're a hammer,

15:05

everything looks like a nail. Well, you know, not

15:07

every problem in our society is a problem

15:10

for the criminal justice system, and an occasion

15:12

to arrest people and lock them up a

15:14

lot of them really should be an occasion for you

15:16

thinking about public health treatments. I'm

15:18

thinking about how we want to approach homelessness,

15:21

and you have a lot of much deeper thoughts

15:23

about how you prevent dysfunction. Rather than

15:25

answering everything with you, we're going to send in the

15:27

police. It certainly seems

15:29

also like this moment, even coming out of the pandemic,

15:32

I can only imagine the mental health crisis is

15:34

going to be even worse. Yeah, that could

15:36

well be, um and I think

15:39

the pandemic is also showing us. Somebody

15:41

asked me the other day whether the protests

15:44

over policing and police brutality

15:46

are related to the pandemic. And

15:48

I was in a webinar and one of the smart people

15:50

in the room said, oh, no, no, they're two entirely different

15:53

things, And I said, what do you mean. The

15:55

same people who are being disproportionately

15:57

affected by policing and police brutality

16:00

are the people who are being disproportionately

16:02

affected by COVID. The statistics

16:04

is that people of color are much more likely to die,

16:07

and there are a lot of reasons for that, you having to do

16:09

with underlying health and having

16:11

to do with the fact that minorities

16:14

and people who are not affluent don't

16:16

get to work from home, they don't get to

16:18

work through zoom. There are the people who are out there

16:20

on the streets, being the first responders,

16:23

being the people who are picking up the garbage, being

16:25

the people who are talking the supermarket shills.

16:28

And I feel like the virus

16:30

is really amplifying so many of the inequities

16:33

we've had in our society. And I think

16:35

especially you know, I don't know what it's like for everyone else,

16:37

but I live in Brooklyn and in New

16:39

York City. It really felt like a lot of the people who

16:42

were out on the street. They were out on the street

16:44

because they were upset about George Floyd, But

16:46

I think it was more that they recognized

16:48

that George Floyd was the tip of the iceberg and

16:51

that there were just a lot going on that they

16:54

really you could not tolerate any longer.

17:00

More from Susan after the break, and make

17:02

sure to subscribe to First Contact in Apple

17:05

podcasts or wherever you listen so you don't

17:07

miss an episode

17:24

putting on the tech hat. You know, I think

17:26

most people probably don't think of tech when they think of

17:28

the a c l U, but there's quite

17:30

a bit of litigation in regards

17:32

to security and privacy issues around

17:35

contact tracing, surveillance, algorithmic

17:37

bias, and obviously the a c l U has

17:40

a hand in checks and balances and a lot of the issues

17:42

that are emerging from the pandemic. You

17:44

know, what are some of the tech

17:46

developments that you guys are most

17:49

concerned about. Well,

17:51

since you were mentioning the COVID

17:53

and the contact tracking and tracing, I'll

17:55

start with that. So the upshot is that

17:58

we are neither for nor against tact

18:00

tracing. If contact tracing is something

18:02

that really will contribute to public health.

18:04

Our concern is not to say no, you can't do

18:07

it, or yes, go right ahead and do whatever you want.

18:09

What we're concerned about is to minimize

18:12

the damage to privacy,

18:14

the damage to equity. Again, Uh,

18:17

there are a lot of concerns that we have. The

18:19

other thing that we're concerned about is discrimination

18:21

again, because there

18:23

are ways in which the technology

18:26

could also increase pre

18:28

existing social inequities. We

18:30

think that people should not be coerced into participating

18:33

and testing. We think it should be voluntary,

18:35

and we also think that it should be nonpunitive,

18:39

because if you start having the criminal justice

18:41

system enforcing whether or not people

18:43

are willing to use their phone

18:45

to take a test or whatever it is,

18:48

you're just creating more opportunities

18:50

for police interactions

18:53

that will at some point be arbitrary

18:55

or discriminatory. So we don't

18:57

want to see rules and regulations

19:00

that are good public health rules. Even if they really

19:02

are good public health rules, we don't

19:04

want to see those become occasions for

19:07

filling up the jails with the people

19:09

who aren't complying, because

19:11

we've already seen there were some statistics

19:13

in New York that when you asked

19:15

the police to start enforcing who's wearing

19:17

a mask and who's not wearing a mask. That

19:20

right away, excuse excuse, racially racially

19:22

disproportionate in terms of who they were questioning

19:24

and who they weren't questioning. So I think

19:27

there's just a lot of issues there which is very

19:29

much prop your reality, because they're very much ethical

19:31

issues. Yeah, you know, UM

19:33

one of the one of the cases that I'm

19:35

fascinated by. UM, And I

19:37

you know, I honestly I felt like it was just it was only

19:40

a matter of time until we saw this headline.

19:42

And then we saw the headline, you know, a man

19:44

was arrested after an algorithm wrongfully

19:47

identified him. You know, I've

19:49

been covering for so many years. AI is biased.

19:51

AI is trained on you know,

19:54

on data online, which can be

19:56

very racist, you know. And I think for so many years

19:58

we've been having this conversation. But the question

20:00

of okay, well, what happens when it gets

20:03

into the hands of the police, what

20:05

happens you know, if if it

20:07

could go for policing, And so I think it's such

20:09

a fascinating case. And and

20:11

you guys, the a c L you filed an administrative

20:14

complaint with Detroit's police

20:16

department over what you guys are calling

20:18

the country's first known wrongful arrest

20:21

involving facial recognition technology.

20:23

I mean, for context,

20:26

a man was arrested because he was

20:28

wrongfully identified by an algorithm.

20:30

The police department thought he had robbed

20:33

I believe, like stolen watches, and

20:35

he was arrested. I mean,

20:37

can you talk to me about the significance

20:40

of this case. I can't help put put

20:42

on my tech hat and scream. You guys, this

20:44

is a really big deal. Yeah,

20:46

it is a really big deal. And as you're saying, Laurie,

20:49

we were aware of this problem for a long

20:51

time and we've been complaining. So going

20:53

back for a minute before getting to the case you're

20:55

talking about, Robert Williams UH

20:58

the National Institute of Sidians and Technology

21:01

says that African American and Asian people

21:03

are up to a hundred times is likely to

21:05

be disidentified by facial recognition.

21:08

So that's the background problem. And so we

21:10

knew that, right, you know, we knew that before

21:12

the case came up in Michigan. UM,

21:15

and it's not the algorithm's fault. Obviously,

21:17

there's something that's being put into the algorithm that

21:19

that is you know that has a bias.

21:22

And I think people tend to think that algorithms

21:24

are you know, are so neutral and that we can rely on

21:26

algorithms. That's what I was saying about the contact

21:29

tracking and tracing, that you

21:31

you start relying on algorithms or apps

21:33

that you think are neutral, and you really have to be very

21:35

wary of that. So again,

21:38

before getting to the Robert Williams case,

21:40

UH and a c l U staffer at the ah

21:42

l U of Northern California had the really

21:44

interesting idea of trying out Amazon's

21:47

facial recognition program Recognition

21:49

with the K because yeah,

21:51

they were just offering this to the police or whatever.

21:53

This is great, it will help you identify and

21:55

see if you have somebody who matches a bug shot.

21:58

Well, what they tried to do, which I thought was very clever,

22:01

was they tried to match mug shots

22:03

against the members of Congress. They

22:05

got, you know, the fatual pictures of all the members

22:08

of Congress. This was in July, and

22:12

there were twenty eight members of Congress who

22:14

were misidentified as matching the mug shots.

22:17

There were twenty instates out of that, and

22:20

not only that, but that the false matches were

22:22

disproportionately people of color. And

22:24

one of the people who was identified as

22:26

matching a mug shot, and therefore, you know, probably

22:29

you know this criminal was civil rights

22:31

legend John Lewis, the guy who

22:33

was beat up on the bridge in Palma to know, to

22:35

get us all voting rights. So

22:38

yeah, we know that almost of

22:41

the false matches there

22:43

were of people of color, even though people

22:45

of color made up only twenty of the

22:47

members of Congress. So in

22:49

some ways, you know, the Robert Williams case is completely

22:51

predictable. We knew that

22:54

we allowed for that to happen. It might have

22:56

already happened elsewhere, but you know, subterranean

22:58

lee in a way that we don't. We didn't see the case.

23:01

But what's amazing about the Robert Williams cases

23:03

that it happened right there, you know, visible to everybody

23:06

where. You can just see it. So what happened

23:08

was that they told him that he was being arrested

23:11

because they believed that he was that

23:13

the algorithm has said that that

23:16

he was a match for this mug shot,

23:18

and they showed him in the mug shot and he said

23:20

to them, do you guys think all black people

23:22

look alike that looks nothing like me. So

23:25

you know, it was pretty clearing that if you used your eyes

23:28

and looked at the picture yourself, if

23:30

you didn't trust the algorithm, and if you looked

23:32

at the picture in this man's face, they didn't

23:34

look alike. But nevertheless, he spent

23:37

thirty hours in jail under some pretty

23:39

miserable conditions because the algorithm

23:41

said it was a match. So I think

23:43

that's really important. In some ways, the fact

23:45

that you know a problem

23:47

exists is not as inspiring

23:50

to make people want to do something about it

23:52

as when you see it. So that's

23:54

what happened with all the protests about George Floyd.

23:57

People could watch that horrible video. They

23:59

could see it. It was recorded on the

24:01

video. And here we have an actual

24:03

person, not just hypothetically statistics

24:06

are showing, but an actual person who

24:08

did get arrested and did have a miserable

24:10

time. He was arrested in front of his family. It

24:13

was really traumatizing, and based

24:15

on again, the officers

24:18

involved were trusting the science

24:20

more than they were trusting their their own eyes.

24:22

When anybody couldn't see he didn't

24:25

look like the picture right, And

24:27

you know, he wrote an offered in the Washington Post,

24:29

and he he asked the question, He said, why is law enforcement

24:31

even allowed to use this technology when it obviously

24:34

doesn't work? So I guess asking

24:37

a legal scholar the question.

24:39

You know, police departments all around the country

24:42

are using different variations of facial

24:44

recognition software. So you

24:46

know, what regulations

24:48

should we see as we enter this era

24:50

of algorithmic discrimination. Yeah,

24:53

that's a great question. And again we've been urging, you

24:55

know, long before Robert Williams turned up, we've

24:57

been urging police departments not to rely on

25:00

the facial recognition technology that it

25:02

was just it was not reliable enough to you to

25:05

hold people's faces in the hands

25:07

of the algorithms don't have hands,

25:09

but for people's face to be dependent

25:11

on the spatial recognition technology

25:13

which was being touted. And again, you it's great

25:15

if a company is doing something to make money,

25:18

but if wanting to make money is your only consideration,

25:21

and if you're not considering whether you

25:23

are unleashing something that is really going

25:25

to be disruptive of people's lives unfairly,

25:29

either because it's just going to be wrong, or because

25:31

it's going to be wrong in a racially skewed

25:33

way. I think that's just really a problem.

25:36

So um, we've been urging

25:38

police departments not to buy and use

25:40

the technology, and I'm sure you know Amazon

25:42

has withdrawn the facial recognition technology

25:45

temporarily and they're not sure whether or

25:47

not they'll bring it back. So

25:49

the probability of wrongful arrest

25:51

is one thing, but when you draw the

25:53

camera back and look at all the technology

25:56

in the bigger picture. In addition to

25:58

facial recognition, one thing that police

26:00

departments have been doing with facial recognition

26:03

and different law enforcement agencies is

26:05

to try to see who attends the demonstration

26:08

or see who's in the crowd. So

26:11

it ties not into are you, like, is

26:13

somebody likely to be wrongly arrested like

26:15

Robert Williams because they just there

26:17

was a false match. But it starts

26:20

becoming big surveillance too that

26:23

an agency has the cameras

26:25

on and then they have the facial recognition

26:27

and they're purporting to identify

26:30

all the people in that crowd so that

26:32

then they can track those people. They now know that

26:34

you were at the George Floyd demonstration and

26:37

that person was in the the

26:39

anti war demonstration, and at

26:41

that point the government starts having more and more

26:44

information about all of us, to

26:46

the point where it feels like, instead of we're

26:48

controlling the government, it's like the government

26:51

controls us. So I think the

26:53

facial recognition is only one part

26:55

of the whole tendency

26:58

of technology to amplify

27:02

government power to

27:04

be kind of watching, watching what we

27:06

do. Yeah, I mean, it's

27:09

it's interesting to hear you say that. Um,

27:11

you know, that type of technology

27:14

is just a part of it, especially when it comes to this moment

27:16

where people are out protesting police brutality,

27:19

where people are out fighting for their civil liberties.

27:21

You know, there's all sorts of technology that's

27:24

being built. Their cameras

27:26

that are are being built, that can recognize

27:29

people in real time, that are police police are wearing.

27:31

There's all sorts of technology. This is

27:33

just the beginning of it. Um, I

27:36

know you mentioned Amazon put a hold on their sales

27:38

of recognition software. Microsoft said it's

27:40

not going to sell face recognition

27:42

software to police departments until their

27:44

federal regulations. I know IBM said

27:47

that it was going to announce a ban on general

27:49

purpose facial recognition. Is

27:51

that enough? Like? What is I guess

27:53

you know, what is the government's

27:56

role here, Like, what do you think should happen, especially

27:58

since this is, just, as you say,

28:01

one small part of a larger issue that

28:03

we're facing as a society. I

28:05

think that's right, and I think that there could be, you know, government

28:08

regulation, but that's not going to happen unless

28:10

the public wants to urge their representatives

28:13

to start controlling this. And what we've

28:15

seen is that an enlightened public can

28:17

make something happen even without regulation,

28:21

right, So, you know, it was that the public was becoming

28:23

concerned and that's the reason why Amazon acted

28:25

to withdraw this. They started being concerned

28:28

that their customers were not going to be happy

28:30

with them. And I think

28:32

at this point that's almost more effective

28:35

than government regulation. And

28:37

once you have that wake up call, then

28:39

you can start having serious debates.

28:41

And I think those debates have to take place in many

28:44

places. They should be taking place

28:46

in legislatures where people can talk

28:48

about the trade off between privacy

28:50

and mass surveillance and whatever the

28:52

government is trying to accomplish. Why

28:54

do they need this technology? Is it really worth

28:57

it? You're their crimes that they wouldn't be

28:59

solveding without it? And are they crimes

29:01

that we're concerned about solving or

29:03

do they fall into the category of, you know,

29:07

is that something that we don't think should be a crime at

29:09

all. People are generally unaware in terms

29:11

of what the police do, that only four to

29:13

five percent of all arrests involve crimes

29:15

of violence. So when

29:17

people think about we want to enable law enforcement

29:20

to be at catching criminals, where

29:22

we're concerned about divesting or defunding

29:24

the police because who's going to protect us from physical

29:27

harm? Almost none of what the police

29:29

and law enforcement do is about physical harm.

29:31

It's a tiny percentage. Everything

29:34

else that they're doing is about this whole

29:36

array of all sorts of other things that we criminalize.

29:39

And I think that in addition to having better

29:41

conversations about is

29:44

there a potential for some of these technologies

29:46

that the government is using to

29:49

create arbitrary or discriminatory

29:51

enforcement, I think we need to dig deeper behind

29:54

that question, in the same way that you need to dig

29:56

deeper beyond the George Floyd murder

29:59

and to ask if there's something systemically

30:01

wrong here, do you need to rethink the whole question.

30:03

So when people say, well, you know, but we need the facial

30:06

recognition technology because it helps the

30:08

police solve crimes. Well, okay, but you know

30:10

what crimes and what are the costs?

30:12

So I think once people are educated enough,

30:15

and once they realize what the nature of the

30:17

problem is, kind of what's

30:19

being unleashed, they can start really being

30:22

ready to have that broader conversation. And

30:24

I think it should take place in legislatures, but

30:26

I think it also should take place and evidently

30:29

is taking place in boardrooms

30:31

at Amazon, Facebook, and Google

30:33

and Microsoft. They should be talking

30:35

and they do sometimes if the people

30:37

demand it. And it also has to take

30:39

part just among people, you know, among

30:42

you know, tech communities and people

30:44

just beginning to talk about what are our responsibilities

30:47

here? Is it okay for us to create products

30:49

to to to make money if

30:51

we know that there are dangerous that the products

30:54

are going to be misused, or maybe

30:56

aren't reliable enough, or that they just feed

30:58

into this enormous survey lean state.

31:01

So let me compare this to an earlier moment.

31:03

After nine eleven, we had a

31:05

kind of a similar phenomenon that in order to deal

31:07

with catching terrorists, we

31:10

changed a lot of laws that ended

31:12

up really sacrificing a lot of privacy

31:14

and allowing a lot more government surveillance,

31:17

and for a number of years that went unchallenged,

31:19

and people kept saying, oh, well, you know, if if

31:21

that's what we need in order to be safe, we're

31:24

willing to give up a little privacy.

31:26

So, first of all, I think people didn't think about

31:28

the fact that they weren't giving up their own privacy,

31:30

they were giving up somebody else's. And

31:33

second of all, people didn't realize how extensive

31:35

the surveillance really was until Edward Snowden.

31:38

So then after Edwards Snowden came along

31:40

and people realized how the government was

31:42

just scooping up tons of information about

31:45

people and just keeping it in government databases

31:47

and started realizing the horrifying

31:50

potential of all that. What

31:52

happened was that Congress made a couple of

31:54

little changes to the law. But more

31:56

important, Microsoft and Google and other

31:58

places started to realize that their customers

32:00

were concerned, and they started

32:03

being a little less cooperative. At the beginning,

32:05

right after nine eleven, all of the telecoms,

32:07

all these companies, we're just saying to the government,

32:09

you want information, here, take it all your

32:11

verizons. Are sure you know hear all the records of all our

32:14

customers take it all. You're keeping us safe. And

32:16

I think that to

32:19

me, the most important thing is an informed

32:21

public. That if people can examine

32:23

for themselves whether they really think that we're

32:25

being kept safe by all of this, and

32:28

really examine you both the costs and the benefits

32:30

in an educated way, I think we

32:33

get much better discussions. And I think not only

32:35

do you have the possibility of getting better

32:37

legislation or regulation, you also

32:39

have the possibility that private

32:42

companies and you know, the tech the tech companies

32:44

are not going to want to do it anymore because their customers

32:46

don't want them to. Yeah, I mean

32:49

it's hard to have an informed public

32:51

and to have these discussions, even in this current

32:53

environment to some degree. I mean, people

32:55

I think are struggling with the idea of

32:57

truth. People are um, you

32:59

know. And I remember, by the way, I remember this

33:02

note in leaks, like I remember being in the news room

33:04

covering technology and thinking to myself

33:06

because I wrote the tech bubble

33:08

all the way up right, and thinking, this

33:11

is an extraordinary moment because we

33:13

saw that we've been sharing all our data, but we

33:16

saw for the first time that you know, the

33:18

government had a lot of access

33:20

to things that we had no idea

33:22

they had access to. And I think it was a fundamental

33:25

shift, and the lens on tech companies

33:27

changed at that moment, and

33:29

tech companies behaviors changed quite

33:31

a bit after that. You know, I wonder

33:34

this moment we're sitting in where we're having these debates

33:36

about surveillance and privacy and whatnot.

33:39

These are sticky debates, and they're very politicized

33:41

as we're heading into an election, as we

33:44

have misinformation spreading online, as

33:46

a lot of people don't know what to believe and what not

33:48

to believe. The as the media landscape

33:50

has changed, it's it certainly seems

33:53

like a harder environment to even to

33:55

even have some of these conversations.

33:57

Well, I think in some ways it's harder in some ways.

34:00

I think the other thing that is a catalyst for

34:02

the discussions is realizing that there is a dimension

34:04

of race to all of us. I think in

34:06

talking about artificial intelligence and facial

34:08

recognition, not many people saw that

34:11

as an issue of structural racism.

34:13

You know, that there's something wrong with how we're putting together

34:15

the algorithms, and it ends up that John Lewis

34:17

is going to be misidentified as somebody

34:20

who matches a mug shot and that Robert Williams

34:22

is going to be arrested. So I think that

34:24

the fact that we now know that

34:26

that is an additional concern enables

34:29

us to have richer conversations. So

34:31

we're not only talking about is there a trade

34:33

off between security and privacy? Plus,

34:36

I think the other thing that people are feeling much more

34:38

open to is to have that deeper conversation

34:41

about what are our goals

34:43

here and if we're enabling

34:45

all this government surveillance in order to

34:48

help the government to catch criminals, well,

34:50

you know, what do we mean by criminals? What crimes

34:52

are they solving? And how are they using you know,

34:54

how how are we how is this actually being used in

34:56

services wood So I feel like in

34:58

some ways, you know, with the election coming up,

35:01

I think that gives people more

35:03

impetus to want to talk about these issues,

35:05

because the elections aren't only about the president.

35:08

They're also about local prosecutors

35:10

and sheriffs and the people who make the decisions

35:12

about whether to buy surveillance

35:14

equipment and what they're gonna do

35:16

with their authority over the criminal justice

35:19

system. So one thing the a c l U

35:21

has been doing in addition to everything else, as

35:23

we've been very involved in elections

35:25

of prosecutors because that's the place

35:27

where almost people never used to pay attention

35:30

to, you know who, who were these people running? And

35:32

maybe they would vote for somebody without really knowing

35:34

what they voted for. So what we're urging,

35:37

and I think this is very much what we're talking about

35:39

about having an educated public. We're

35:42

urging people to go to elections

35:44

or to go to debates, to go to campaign

35:46

events, attending I guess on zoom these

35:49

days, to attend campaign events

35:51

and ask the candidates questions, what

35:53

would be your policy about whether or not you're going

35:55

to accept military equipment from the

35:57

federal government in your police department? Are

35:59

you going to buy tanks? Are you going

36:01

to buy you know, these horrible weapons that

36:04

are used? Is that something you would do?

36:06

Are you going to buy you know, facial recognition

36:08

software? Is that how you would use your power? If

36:10

we you left you um say

36:13

that the prosecutors, would you support a

36:15

reduction in cash bail and increase

36:18

with increased alternatives to incarceration.

36:21

So that's a place where without waiting for the

36:23

government to do something, we can

36:25

ourselves effect what's happening in our

36:27

communities. By encouraging

36:29

candidates to think about

36:32

what positions they're taking on these different issues

36:34

and letting them know that they're gonna lose votes. The

36:37

more people educated, the more they are educated,

36:40

the more they can tell people that they'll lose votes,

36:42

and to try that. This is something that's worked in some

36:44

places to encourage candidates to

36:47

take a better position. Yeah.

36:49

Yeah, they might never never thought of that, but you

36:51

know, once they commit themselves, you know that's going to be

36:53

better. So there are all sorts of ways that

36:55

we can affect things. More

37:00

from Susan after the break, and make sure

37:02

you sign up for our newsletter at dot dot dot media

37:04

dot com Backslash newsletter we'll

37:06

be launching this summer. Before

37:23

I move on from specifically some of

37:25

the tech issues, I have to bring up predator

37:27

drones. Uh right.

37:31

You know, the the U S. Customers and Border

37:33

Protection flew a large predator drone over

37:35

the Minneapolis protests. You know, people were

37:37

protesting police brutality in the killing of George

37:39

Floyd, and for many reasons, it almost

37:42

felt symbolic. You know, it was raising all

37:44

these questions about aerial

37:46

surveillance about what

37:48

data was being collected, where

37:50

was this going. What is your

37:53

take on this? Well, you know, as

37:55

you're saying, Laurie, and you know that really it

37:57

really magnifies the opportunity to gather

37:59

more in formation because you don't even have to have

38:01

the helicopters or whatever. But

38:04

so you know that of course is a concern just you

38:06

how much information is the government gathering,

38:08

What are they going to do with it, who's going to have access

38:10

to it? Will will ever be deleted or will it just

38:12

got to stay there in the government databases

38:15

forever. But I think the other thing that

38:17

the Predator drone brings to mind is

38:19

a question that people were also asking, which

38:21

is about the militarization of law enforcement

38:24

we have had for years in this country. A

38:26

poppy Comma taught us Act as It's called,

38:29

which says, you don't want the military doing

38:31

everyday law enforcement because

38:34

that's that's not our country. We

38:36

don't want the military to be quote dominating

38:38

the streets, and we don't want the

38:41

people who are out protesting to be considered

38:43

the enemy of the United States. There

38:46

are people who are expressing their opinions, and

38:48

so the whole idea of you know, it's

38:50

one thing. It's enough if the police

38:53

held helicopters are flying overhead

38:55

and trying to keep track of, you know, who's in the crowd

38:57

and what the crowd is doing. But once he's

39:00

start adding an element of something

39:02

the military helicopters or the military

39:05

drones or things that feel like we

39:08

are being treated as the enemy of the government

39:10

instead of the people who are the government, who

39:12

are supposed to be controlling the government. I

39:15

think that that's just it's a very bad paradise.

39:19

You think it's a slippery slope, Well,

39:21

it's a slippery slope unless we stopped the slipping.

39:23

And as we saw with you with Amazon and the

39:25

facial recognition, if people say, wait a minute,

39:28

yeah, I think we can make that stuff. But

39:30

I think if people don't pay attention, I think we

39:32

have a very slippery slope. And that's

39:34

what I've been saying about most of the issues we've

39:36

talked about you, starting with the contact

39:39

tracing and the surveillance

39:41

and everything else. It seems to be that what's really important

39:43

is transparency. We should know what the

39:46

government is doing and accountability.

39:48

Back on the issue of contact tracing, one

39:50

thing that the AHL you do. Together with the a l

39:53

U of Massachusetts is we have

39:55

filed the lawsuit were actually a records

39:57

request demanding that government,

40:00

including the CDC, release information

40:02

about the possible uses of all the location

40:05

data that they would be collecting in connection with

40:07

contact tracing, because

40:09

you know, once if you don't know what they're

40:11

doing, then you can have a discussion about what they

40:13

should be doing. And one reason why I

40:15

was bringing up all the post nine eleven changes

40:18

of law is that I think that the whole idea

40:20

that we can't know what the government

40:23

is doing. The government has to act in secret

40:25

in order to keep us safe, or else the enemy

40:27

will be able to know what they're doing and you know,

40:29

and work around it. But the

40:31

government can know everything that we're doing. I

40:34

think that just has democracy backwards. You

40:36

know, we have to be able to know what's happening

40:38

inside the government. And that applies to why

40:41

are they sending the Predator drone? What are they going to

40:43

do with the information? What does this mean? Are they

40:45

going to do it again? And it also

40:47

has to do with the contact track tracking

40:49

and tracing. Once they get that data,

40:51

what happens to it? Are they going to

40:53

erase itever, you know, who do they share it with, what are

40:55

they going to do with it? And I feel, you

40:57

know, those are really important issues in a democracy

41:00

that we just have the right to know what the government

41:02

just doing so that we can talk about it. And

41:05

I feel like to sort of say, well, this is what

41:07

the government is doing and that's really bad,

41:09

and that upsets me. I think that

41:11

kind of misses the point. If the government is doing

41:13

something bad, then it is the duty of

41:16

every American to find out

41:18

what they're doing and to push back. And

41:20

so at the a c l U we have a program

41:22

that we call people Power. We

41:24

first invented that and used it to explain

41:27

to cities and localities

41:29

all over the country about how they could fight

41:31

back against draconian immigration

41:33

rules by becoming quote sanctuary cities,

41:36

what what their rights actually were. We then

41:39

used it through voting rights. We're about to

41:41

use it some more for voting rights. But what

41:43

we have really urged and I hope that you know, some of

41:45

your listeners will go to the a c l U website

41:47

and see about what people Power is doing in

41:49

addition to what the a c l U is doing, Because

41:51

what is the a c l U doing, and that's all the staffers

41:54

at home trying to you know, work on their new laptops

41:56

while they're trying to you know, keep their talkers quiet.

41:59

But People Hour is about what every single

42:01

person can and I think should be doing.

42:03

You know, if people really educate themselves and

42:05

think about the ethical issues, the

42:08

costs and benefits of all this technology

42:11

in addition to a lot of other things going on, I

42:13

think we get a lot better results if people

42:15

pay attention. Yeah, I mean it's interesting

42:17

to watch the a c L you take on issues

42:19

like surveillance, facial recognition. I know,

42:21

the a c L you filed a lawsuit against clear View

42:24

AI, which was this very controversial company

42:27

that was using biometric data. I

42:29

think facial recognition technology helped them collect

42:31

something like three billion face prints and they were

42:33

giving access to private companies, wealthy

42:36

individuals, federal, state, and local law enforcement

42:39

agencies, and you know, coming from

42:41

the tech space, it certainly feels like

42:43

sometimes these stories, you just don't know what

42:45

these companies are doing until

42:47

you start, you know, peeling back the

42:49

layers and seeing all the data went to here

42:52

and here, and why did it go there? And why wasn't

42:54

this disclosed and and oftentimes

42:56

it takes the watchdog to really

42:59

understand and where some of this can

43:01

can go wrong, and how it's being

43:03

used in ways in ways that

43:05

can be dangerous in many ways. Yeah,

43:08

I think that's exactly right. And that's why I was saying before

43:10

that aren't concerned before everybody jumps on the bandwagon

43:13

about let's have more contact tracing and you know,

43:15

like everybody should just be doing all this information.

43:18

I think we have to get a dog. Yeah,

43:21

you're not gonna have to watch dog telling you things unless

43:24

you build a watchdog into the system. And

43:26

if everything is just you know, a company has invented

43:28

this and is selling it to the police, or a company

43:30

who has invented this and now we're all going to buy it.

43:33

If you just leave out any sort of oversight,

43:35

then you really have a tremendous potential

43:37

problem. Are there any other examples

43:39

of tech that we're not thinking about the unintended

43:42

consequences for our rights or privacy

43:44

yet? Well, you know,

43:46

a AI is really big altogether across

43:49

as you're saying, across many different kinds of

43:51

issues. I was just actually, this

43:53

is not a tent gential to your question but you were

43:55

asking me before about cases that I had worked

43:57

on, and there was another case that I worked on that was

44:00

about tech where I wrote the A c

44:02

l Used brief in the Supreme Court.

44:04

It was an Amika's brief. It wasn't about

44:06

our client, but it was a kid called Riley versus

44:08

California. And what the police were

44:11

saying they're most law enforcement

44:13

places, the federal government as well as the state

44:15

of California and many other jurisdictions,

44:18

was that when you arrest somebody, the

44:20

police get to do what is called a search incident

44:22

to arrest, so they get to see what you have

44:24

in your pocket. Makes some sense, right, you know, if you have

44:26

a gun in your pocket, that's a problem or you know whatever,

44:29

So they get to do a surgeon sent in to arrest.

44:31

And the law had been that if they find

44:33

something in your pocket like that's that's a container,

44:36

they can search inside the container to see

44:38

if there's anything in it that that

44:40

could be harmful. And in fact, there was one situation

44:43

where they opened up a cigarette package

44:45

that somebody had and they you know, they could find

44:47

a razor blade, they could find the marijuana,

44:49

cigarette whatever. So that was law where

44:51

the Supreme Court said, yes, you're allowed to search

44:53

people and search the containers that are on them.

44:56

Well, what law enforcement said was your cell

44:58

phone as a container. When

45:00

we arrest you, we can search your cell phone. It's

45:02

a container. We have the right to search incident

45:05

to a risk. And so we wrote a brief saying,

45:07

no, it's not you know, it's a container, but it's a

45:09

container that essentially is your home, it's

45:12

your library, it's your desk. So

45:15

allowing the police to look in your cell phone

45:17

when they only had really very feeble

45:20

and very unlikely scenarios,

45:22

things that just wouldn't happen too often for what the

45:24

need was. You know, maybe you had some remote thing

45:26

that would go off and would blow something up. You know,

45:28

oh come on. But yeah, there were other ways

45:30

to deal with a lot of that, and so the Supreme

45:33

Court actually agreed with that. They said, yeah,

45:35

this is really is just a technological

45:37

way of finding out what's

45:39

in all your papers and books and records.

45:42

It used to be they were in your desk, and now they're in your

45:44

cell phone. So that, to me, it's

45:47

a sort of a whole thread of what we've been talking

45:49

about. But the challenges to civil liberties

45:51

are different and in some ways

45:53

greater when the technology builds

45:55

up. Yeah, there's

45:58

there's a great quote on the A. C. L. You Let's site.

46:00

The fact that technology now allows an individual

46:02

to carry such information in his hand does not make

46:04

the information any less worthy of the protection

46:06

for which the founders fought. The U.

46:09

S. Supreme Court Chief Justice John Roberts

46:11

exactly, I like to talk about, you

46:13

know, one of the whole points of the Constitution

46:16

adding the Fourth Amendment, which is the protection

46:18

of privacy, is they wanted to protect

46:20

what was in Benjamin Franklin's disk. Nobody

46:23

should know if he was writing some things that were anti

46:25

government, and we now have that on our cell

46:27

phone, so of course, But that's where

46:29

I think that a lot of the protection

46:31

of civil liberties is applying our

46:34

fundamental principles in different circumstances.

46:37

Taking a gigantic step back, what

46:39

do you think is the biggest threat to civil liberties

46:42

in the new World Order? In

46:44

the New World Order? Well, you know, it's hard to

46:46

just select one. It's sort of like Sophie's choice,

46:48

you know, which which is your favorite child? But

46:51

right now, I think one of our very top priorities

46:53

and adenia. Mass incarceration is a big one

46:55

because so many people's lives are just being totally

46:58

disrupted, their families often,

47:00

the question really has to be for what. One

47:03

thing that we're hoping is that the work we've been doing

47:05

around trying to get vulnerable people released

47:08

from prison so that they won't get the virus

47:10

and get seriously

47:12

all possibly guide is we're hoping

47:14

that once jurisdictions see that

47:17

they were able to release thousands of people

47:19

from prisons and jails and that it's

47:21

not going to cause a spike in the crime rate thing it

47:24

really is pretty safe thing to do. We're

47:26

hoping that that's going to stick and

47:28

that long run will be able to rethink,

47:30

well, did we really need to put all those people in

47:32

prison and jail to start with? What are we doing

47:34

with the criminal justice system? So that's really

47:37

big. But the other thing that I think is really

47:39

big right now is voting rights. I

47:41

had alluded to this at the beginning of our conversation,

47:44

but the premise of democracy

47:46

is that the people get to decide on who

47:49

should be running the government and who should be making

47:51

the policy about all these things we're talking

47:53

about here. You know, what, what are the

47:55

regulations about technology? What are

47:57

the regulations about your reproductive freedom?

48:00

Are everything else? LGBT

48:02

rights? Uh? And if

48:04

the people's vote is distorted, that's a

48:07

real problem that people can't vote. So

48:09

we have litigation going on right now

48:11

in I think it's like thirty different

48:13

states trying to get

48:15

people the opportunity to vote. So

48:18

one of the things that has happened,

48:20

in addition to all ways

48:22

that incumbents had been using to try to protect

48:25

their own seats, is that the

48:27

virus has really made it dangerous for people

48:29

to vote in public places. So we

48:31

saw the election in Wisconsin

48:34

where people were just lined up for you know, tremendous

48:37

disiness is waiting for a really long time to vote

48:39

because Wisconsin would not allow them

48:41

to submit absentee ballots. And

48:43

in fact, a study showed afterwards that at least

48:45

seventeen people got got the virus from

48:48

voting. Many many polling

48:50

places were closed because they, first

48:52

of all, the poll poll workers are generally elderly

48:54

people, and the poll workers were not able and willing

48:57

to to man the polling places. Are

49:00

a number of states that don't allow absentee

49:02

ballots at all, unless you have a particular

49:04

situation, like if you're disabled, and the states

49:06

you're saying, oh, well, you know, the pure and the virus are

49:08

getting yill, that's not a disability.

49:11

Or before you get an absentee ballot, you have

49:13

to have it notarized, you have to have witnesses.

49:15

Now, how is all this going to happen? So

49:18

it's very concerning that people

49:20

are going to have to choose between their health

49:22

and their right to vote. And we don't

49:24

think that that should happen. And that's something that

49:27

has to be attended to right now because

49:29

if states don't come up with plans they're trying

49:32

to enable everyone who wants to vote

49:34

to be able to vote, and

49:36

for counting absentee ballots and for

49:38

administering this program. If you don't come up

49:40

right now with the plan and the resources, a

49:42

lot of people are going to be left out and they're going to find

49:45

that either you know, they can't vote because

49:47

they're afraid to go out to the poll, or

49:49

the vote is not going to be adequately counted. So

49:51

I think that right now making democracy work

49:54

is really one of our top projects. What

49:56

is the solution to some of these problems? What are

49:58

your tangible solutions. But one tangible

50:01

solution is that more states have to make absentee

50:03

balloting available to people without having

50:05

all these conditions and you know obstacles.

50:09

Uh. The other solution that you

50:11

were talking before about truth. A

50:13

lot of the reason that's

50:15

given the very thin veneer of

50:17

justification that's given for we don't want absentee

50:20

ballots or we need voter i D people

50:22

to carry government approved

50:24

voter i D, which means you have to go down

50:27

to a governmental office live and get your voter

50:29

i D and show it at the polls. The

50:32

excuse for a lot of this is is that

50:34

there could be fraud. Well, studies have shown

50:36

that there's virtually no voter fraud, and

50:39

it's just it's really a real unicorn. And

50:41

again, I think if people understood that,

50:43

that might sound good, but it's not true. I

50:45

think truth is another thing that we're really

50:47

fighting for these days. Can you listen to the evidence,

50:49

Can you listen to the public health officials, Can you

50:52

listen to what you what's real? I

50:54

know for a fact that tech companies are very

50:56

concerned about voter suppression, you

50:58

know, and misinformation spreading online.

51:00

This idea of countering truth around a lot of

51:02

these very important initiatives, whether it's

51:05

absentee ballots, whether it's showing up to the polls,

51:07

all that kind of thing. You know, I'd

51:09

be curious to know your take. There's a current battle

51:12

happening right now. You have seven fifty advertisers

51:14

boycotting Facebook asking for better

51:17

policing of hateful content. Our

51:19

social media companies doing enough to police

51:21

harmful content, especially

51:24

as we head into an election where voter suppression

51:26

and the spread of misinformation will most certainly

51:28

be attacked. It used to manipulate voters.

51:31

Well, let me actually break your question down into two

51:33

different parts, because you were starting by saying about

51:35

the concerned about voter suppression. I

51:37

think one thing that everybody should be doing is

51:39

to increase awareness of

51:42

what is a fair way to improve

51:44

access to the ballot for everybody.

51:46

And some of those things are tech solutions. We've had

51:48

tech solutions for years that are available

51:50

and not widely enough used. How do you

51:53

enable differently abled people

51:55

to vote? You can bind people vote, do

51:57

they have the technology? So there

51:59

are a lot of is where we need the tech community

52:01

and we need everybody to find out how

52:04

you vote to find out a voting can be made

52:06

easier, and to let people know

52:08

what the rules for voting are where they live. So one

52:11

thing the a c l U Is doing is we have on our

52:13

website you know your rights, you know what

52:15

you're voting regulations are. And

52:17

that's something that I think people really have to start thinking

52:19

a lot about and to let let

52:21

all their communities, all their friends and family

52:23

know about the importance of voting and how

52:26

they what they have to do to vote, and to urge

52:28

them to just get out and vote in whatever form

52:30

that's going to take. So I think that's really

52:32

important. In terms of disinformation

52:35

on social media, people

52:38

talk about the First Amendment

52:40

and whether you know there's the First Amendment problem

52:42

with Facebook telling you what you can't

52:44

do, Well, there isn't because the First Amendment

52:46

only applies to the government, so

52:49

you don't have a First Amendment right to say whatever

52:51

you want on Facebook. However, I

52:53

have to say that we're you know, we don't regard

52:56

that issue is altogether a simplistic issue

52:58

that Facebook should be telling everybody if they can't

53:00

say because even though the First a Moment

53:02

does not apply to private companies, there's

53:05

still a tremendous value to free speech. And

53:08

there are a number of examples, which you know,

53:10

are we've come up with about people

53:13

who are have speech suppressed for bad

53:15

reasons. I'll give you one example. There was a

53:17

woman who African American

53:19

woman who posted something on

53:21

Twitter and she got all these horrible racist

53:23

responses and she posted

53:26

a screenshot of the responses that she got

53:28

to show people what she was up against, and

53:30

Twitter took it down because it included racist

53:32

words that you know, okay,

53:35

you know, kind of misses the point. There

53:37

was another uh A CLU lawyer

53:39

wrote about a statue in Kansas

53:42

that was a topless statue was a woman who

53:45

were bare agrested, and so whatever

53:47

the locality was in Kansas decided

53:49

to take it down because yeah, that was

53:52

they considered that to be important. So the

53:54

A. C. L You lawyer, who was challenging whether or

53:56

not the I think it was city could take

53:58

it down, posted a a picture

54:00

of the statue and that was it was on Twitter

54:02

was I think Facebook, and that was taken down

54:05

on the ground that it was obscene, so she couldn't

54:07

post the picture of what she wanted to do.

54:09

So we think that social media

54:12

control is really a two age sword. What

54:14

I liked is at one point Facebook had a protocol

54:17

for about you what's true and what isn't true,

54:19

And what they did was they gave you a flag. So

54:22

if they were concerned that something that was said

54:24

wasn't true, they would have a neutral fact

54:27

checker check it, and then if it didn't

54:29

turn up, well, they would put a little flag over

54:31

it and say this has been questioned, and you could click

54:33

on the flag and you could see why it was questioned.

54:36

But they didn't just take it down. So

54:38

you know, I I agree that, you know, disinformation

54:40

is a tremendous problem, but I think

54:43

that the idea that the solution is asked

54:45

the tech companies to decide what we should and

54:47

shouldn't see. Yeah, I don't think that's

54:49

so great either, And certainly

54:51

they should not be doing it without a lot of transparency

54:54

and accountability. If they're going to be taking things

54:56

down, they should tell us what

54:58

their protocols are, and you

55:00

know, there should be more public discussion about

55:03

where the balance is there. Yeah, it certainly

55:05

seems like the protocols change quite a bit, Especially

55:07

having covered tank for for this many

55:09

years. It certainly seems like Facebook changes that, Twitter

55:11

changes it, and oftentimes it depends on

55:13

public pressure. I'm curious to see what happens

55:16

with all these advertisers boycotting. I think

55:18

personally, I have a feeling it won't impact the bottom line

55:20

much and they'll go back to business as

55:22

normal. But but who knows, you know, I do

55:25

know that Zuckerbird cares deeply

55:27

about his employees and and but they've

55:29

been kind of up against you know, public

55:31

scrutiny for a very long time. But but it certainly

55:34

is interesting, especially when the stakes get higher

55:36

and disinformation can go further,

55:39

and especially as we get closer

55:41

to an election, it certainly feels like everyone

55:43

feels more triggered around it. Yeah.

55:46

Yeah, well, you know, one of the classic statements

55:49

about the First Amendment does that in the marketplace

55:51

of ideas, the best antidote to bad

55:53

speech is more speech, right, So,

55:55

you know, suppression. I think we always have to worry every

55:57

time somebody is censoring and suppressing. Yeah,

56:01

who are we giving that power to? You know,

56:03

nearing a close because we don't have you for

56:05

too much longer. I saw that you gave

56:07

a talk um Democrat

56:10

and a Republican walk into a bar and

56:12

you're saying that it seems like these days Democrats

56:14

and Republicans can't really agree on anything, but

56:17

we all need to agree on fundamental

56:19

American principles like do process, equality

56:21

and freedom of conscience?

56:23

So is that possible?

56:26

Do you believe are you are you an optimist? Do you

56:28

believe that in this current environment? Is

56:30

that possible? Well?

56:33

I think that's that's a great wrap up question. So

56:36

that speech I gave it the Central Arkansas Library.

56:39

And my cheat point, as you're saying, is I

56:41

think that people have to be able

56:43

to agree on neutral

56:45

principles. The Constitution

56:48

was designed not to say what we're going to

56:50

do about everything. It was designed to have

56:52

everybody have a fair opportunity

56:54

to be part of the process of

56:56

deciding what we're going to do. So it sets

56:59

up all these Democrats structures where we get

57:01

to vote for the people who are the policy makers

57:03

and we all got to decide. But the

57:05

principles there, the underlying principle is

57:07

that everybody should have a fair and you know, if

57:09

the principle should be neutral, everyone should get to

57:11

vote. It's not like, you know, if you're

57:13

a Democrat, your vote doesn't count in this area,

57:16

and if your republic and your vote doesn't count in

57:18

that area, that's not fair. And

57:20

the basic ideas of the

57:23

freedom of speech, freedom of religion, they're

57:25

all to me. They managestations

57:27

of the golden rule that if I

57:30

want the ability to just choose my own religion

57:32

and decide what religion I'm going to practice, I

57:34

have to respect your right to make a different choice

57:36

and have your own religion, because that's the golden

57:38

rule. If I want to say something that's unpopular,

57:41

I have to respect your right to say something that's

57:43

unpopular. And if I want to be treated

57:45

fairly and not locked away for your doing

57:47

something minor and never given a fair trial, I

57:50

have to respect your right to have the same thing

57:52

happened to you and to be all

57:54

those fundamental principles are things that we really

57:56

all should agree on. I think people

57:58

get into arguing and assuming

58:01

that they can never agree on

58:03

the principles because they're differing on what

58:05

they think the results should be. And

58:07

I think to be part of the point of civil

58:09

liberties is it's all about process, it's not

58:11

about results. The a c l U is nonpartisan.

58:14

We don't try to get Republicans elected. We don't

58:16

try to get Democrats elected. We don't

58:18

favor or disfavor individual politicians

58:20

or individual parties, but we

58:22

we favor or that there should be neutral

58:25

principles that everybody can agree

58:27

to to say, okay, here's what's fair. And

58:29

the analogy I used in that talk

58:31

at the Central Arkansas Library it

58:34

was one of the nights during the

58:36

World Series, but fortunately not a night where

58:38

there was a game, so people were able to come, and

58:41

I said, okay, so what happens before a

58:43

baseball game is that everybody has agreed

58:45

on the underlying rules, and everyone agrees

58:48

that the your umpires, your

58:50

referees, and any sports should be neutral. And

58:53

you don't want somebody who's partisan. If they were favoring

58:55

one team, you'd get rid of them at all. Sports

58:58

fans could agree to that. You know, maybe they would

59:00

be a few who would be just so you know, matchiavellian,

59:02

that they would rather have the biased umpire

59:05

to always rule for their side. But I

59:07

think sports fans can agree what you really

59:09

want for a fair game. Because you want a

59:11

fair game, you want everyone to agree on the principles

59:14

beforehand. And I think that if we

59:16

could sit down in small groups around the

59:18

country and really talk about what the fundamental

59:20

principles are. I am

59:22

enough of the patriot to think we actually could agree

59:24

about a lot. And let me give you an example

59:26

of why I think there's some basis for hope.

59:30

Maybe not optimism, but certainly hope. We

59:33

were talking about voting rights. So one of the

59:35

major problems is gerrymandering, the

59:37

way when a party is in power

59:39

they try to distort all the

59:42

districts and they try to stack the deck so that

59:44

their party will remain in power. Or

59:46

if the party in power in a particular state

59:49

thinks it's to their advantage to not have that

59:51

many people vote, they try to make it harder

59:53

to register to vote for new

59:55

voters, etcetera. Uh.

59:58

We have had the A C l U and and

1:00:00

a member of other organizations working

1:00:02

in coalition with us have had a fair amount

1:00:04

of success doing ballot initiatives

1:00:06

going to the people of a state in

1:00:09

states like Michigan and Nevada

1:00:11

and Missouri and Florida, where

1:00:13

we were part of getting the amendment for a past

1:00:15

that gave the vote back to people who

1:00:18

have been convicted of a felony at some point

1:00:20

and the people of the state. When you ask the people

1:00:23

of the state, you can get a majority. Sometimes

1:00:25

the super majority of people who say no, we want

1:00:27

the rules to be fair. Who

1:00:29

doesn't want the rules to be fair are legislators

1:00:32

who want who are incumbents and who want to keep

1:00:34

their seats even if it takes unfair procedures

1:00:37

to do it. So that's a real

1:00:39

problem right where we have right now that the incumbents,

1:00:41

the people who are trying to maintain power and

1:00:44

not allow any sort of regime change, are

1:00:46

pulling all the levers. But what I

1:00:48

think, I think the chief grounds for optimism

1:00:51

is that when you go to the American people

1:00:53

themselves and say, well, do you want a fair system

1:00:55

or do you want a system where you think your side is more

1:00:58

likely to win? You talk to

1:01:00

them about that, and I think that you're going to get them to say

1:01:02

they would really like to see a fair system,

1:01:04

and that is the promise of America. Um.

1:01:07

Last question you have taught at Brooklyn Law School,

1:01:10

since what is the lesson

1:01:12

your students will take from this moment in history?

1:01:15

Well, I know there

1:01:17

are lots of lessons, but if you could

1:01:19

extract it, what is the lesson your

1:01:21

students will take from this moment in history,

1:01:24

well, you know, in an individual

1:01:27

setting. One thing I'm doing for the fall is

1:01:29

I am preparing of course that I'm calling COVID

1:01:31

nineteen and the Constitution. So

1:01:33

what we're gonna do in this seminar is we're going to be looking

1:01:35

at the way in which the Constitution has been

1:01:38

challenged and to see, you know, how well it holds up.

1:01:40

What does the Constitution have to say about whether

1:01:42

you can quarantine people and whether

1:01:44

you can allow people to be at a religioussembly

1:01:46

but not go to a protest, and etcetera,

1:01:49

etcetera. So I think there's a lot of interesting things

1:01:51

there which I think are very much this particular

1:01:53

moment, but big picture, what I would

1:01:55

like the students to take away, the

1:01:58

constitutional law students especially is

1:02:00

essentially what I just said to you, that the Constitution

1:02:03

is about process. It's not about results,

1:02:05

it's not about you know, you're a Republican and you're a

1:02:07

Democrat, and we have two different countries depending

1:02:10

on what your party is. I

1:02:12

think that we have one country and it's all

1:02:14

about a neutral process for very good

1:02:16

reasons, and I would like people to think more about

1:02:18

that after my speech at the Central Arkansas

1:02:21

Library, I had two

1:02:23

examples of people who talked to me. One guy came

1:02:25

up to me, he said, I'm the Republican

1:02:27

who walked into that bar, and

1:02:31

he said, you know, you're making a lot of

1:02:33

sense to me. And then there was another guy

1:02:35

who talked to me who was a Democrat. He said, you know,

1:02:37

I never really thought about that that maybe it's not

1:02:39

right if we're only trying to win. I never thought

1:02:42

about you know, that's that's not what we do in sports.

1:02:45

And that's what I'd like people to think about. You

1:02:47

know, do you really want to do things that are only about how

1:02:49

you think it's going to come out and cheat and destroy

1:02:52

the system, and you know, put a film on the scale

1:02:54

and you know, stack the deck in

1:02:56

order to make things come out to what your

1:02:58

preferred result is in the short

1:03:00

run or long term. Is that

1:03:02

just a really bad idea because

1:03:04

it's just totally inconsistent. You know, we've

1:03:06

just come from fourth of July. It's totally inconsistent

1:03:09

with the premises on which we

1:03:11

would like to believe our country was founded.

1:03:15

Does technology throw a wrench in the system?

1:03:17

I mean it does. It does create lots

1:03:19

of things you can't control, and and it

1:03:22

it always does. It's always it's always

1:03:24

new environment, so you know, different kind of example,

1:03:26

we were talking about technology and surveillance,

1:03:28

where of course technology has enabled

1:03:30

a whole lot of survalance that we then have to deal

1:03:32

with. But technology also enabled

1:03:35

a whole lot of new marketplaces of ideas.

1:03:37

So the A c L. You did a lot of litigation a

1:03:40

few decades ago on applying first

1:03:42

two Moment principles to the Internet, right,

1:03:44

you know, becauld the government censor what

1:03:46

was on the Internet because you know, child,

1:03:48

a child might see it. Yeah, And

1:03:51

so you know, every new generation of technology,

1:03:53

there are new challenges about

1:03:56

how you apply our principles like privacy

1:03:58

and free speech, cetera to

1:04:01

the Internet, but the principles

1:04:03

remained the same. I

1:04:16

hope everyone is doing well in these strange

1:04:18

and surreal times and adjusting

1:04:20

to the new normal. Most important,

1:04:23

I hope you're staying healthy and somewhat

1:04:25

sane. Follow along on our social

1:04:27

media. I'm at Lorie Siegel on Twitter

1:04:29

and Instagram, and the show is at First

1:04:31

Contact Podcasts on Instagram and on

1:04:34

Twitter. We're at First Contact pod

1:04:36

and for even more from Dot dot dot sign up

1:04:38

for our newsletter at dot dot dot media dot

1:04:40

com, Backslash Newsletter, and

1:04:42

if you like what you heard, leave us a review on Apple

1:04:45

podcasts or wherever you listen. We really

1:04:47

appreciate it. First

1:04:51

Contact is a production of dot dot dot Media

1:04:54

Executive produced by Laurie Siegel and Derek

1:04:56

Dodge. This episode

1:04:59

was produced and ed it did by Sabine Jansen

1:05:01

and Jack Regan. The original theme

1:05:03

music is by Xander Sang. First

1:05:14

Contact with Lorie Siegel is a production of dot

1:05:17

dot dot Media and I Heart Radio m