Black America’s State of Surveillance

Ten years ago, on Martin Luther King Jr.’s birthday, my mother, a former Black Panther, died from complications of sickle cell anemia. Weeks before she died, the FBI came knocking at our door, demanding that my mother testify in a secret trial proceeding against other former Panthers or face arrest. My mother, unable to walk, refused. The detectives told my mother as they left that they would be watching her. They didn’t get to do that. My mother died just two weeks later.

My mother was not the only black person to come under the watchful eye of American law enforcement for perceived and actual dissidence. Nor is dissidence always a requirement for being subject to spying. Files obtained during a break-in at an FBI office in 1971 revealed that African Americans, J. Edger Hoover’s largest target group, didn’t have to be perceived as dissident to warrant surveillance. They just had to be black. As I write this, the same philosophy is driving the increasing adoption and use of surveillance technologies by local law enforcement agencies across the United States.

Today, media reporting on government surveillance is laser-focused on the revelations by Edward Snowden that millions of Americans were being spied on by the NSA. Yet my mother’s visit from the FBI reminds me that, from the slave pass system to laws that deputized white civilians as enforcers of Jim Crow, black people and other people of color have lived for centuries with surveillance practices aimed at maintaining a racial hierarchy.

It’s time for journalists to tell a new story that does not start the clock when privileged classes learn they are targets of surveillance. We need to understand that data has historically been overused to repress dissidence, monitor perceived criminality, and perpetually maintain an impoverished underclass.

In an era of big data, the Internet has increased the speed and secrecy of data collection. Thanks to new surveillance technologies, law enforcement agencies are now able to collect massive amounts of indiscriminate data. Yet legal protections and policies have not caught up to this technological advance.

Concerned advocates see mass surveillance as the problem and protecting privacy as the goal. Targeted surveillance is an obvious answer—it may be discriminatory, but it helps protect the privacy perceived as an earned privilege of the inherently innocent.

The trouble is, targeted surveillance frequently includes the indiscriminate collection of the private data of people targeted by race but not involved in any crime.

For targeted communities, there is little to no expectation of privacy from government or corporate surveillance.

Instead, we are watched, either as criminals or as consumers. We do not expect policies to protect us. Instead, we’ve birthed a complex and coded culture—from jazz to spoken dialects—in order to navigate a world in which spying, from AT&T and Walmart to public benefits programs and beat cops on the block, is as much a part of our built environment as the streets covered in our blood.

In a recent address, New York City Police Commissioner Bill Bratton made it clear: “2015 will be one of the most significant years in the history of this organization. It will be the year of technology, in which we literally will give to every member of this department technology that would’ve been unheard of even a few years ago.”

Predictive policing, also known as “Total Information Awareness,” is described as using advanced technological tools and data analysis to “preempt” crime. It utilizes trends, patterns, sequences, and affinities found in data to make determinations about when and where crimes will occur.

This model is deceptive, however, because it presumes data inputs to be neutral. They aren’t. In a racially discriminatory criminal justice system, surveillance technologies reproduce injustice. Instead of reducing discrimination, predictive policing is a face of what author Michelle Alexander calls the “New Jim Crow”—a de facto system of separate and unequal application of laws, police practices, conviction rates, sentencing terms, and conditions of confinement that operate more as a system of social control by racial hierarchy than as crime prevention or punishment.

In New York City, the predictive policing approach in use is “Broken Windows.” This approach to policing places an undue focus on quality of life crimes—like selling loose cigarettes, the kind of offense for which Eric Garner was choked to death. Without oversight, accountability, transparency, or rights, predictive policing is just high-tech racial profiling—indiscriminate data collection that drives discriminatory policing practices.

As local law enforcement agencies increasingly adopt surveillance technologies, they use them in three primary ways: to listen in on specific conversations on and offline; to observe daily movements of individuals and groups; and to observe data trends. Police departments like Bratton’s aim to use sophisticated technologies to do all three.

They will use technologies like license plate readers, which the Electronic Frontier Foundation found to be disproportionately used in communities of color and communities in the process of being gentrified.

They will use facial recognition, biometric scanning software, which the FBI has now rolled out as a national system, to be adopted by local police departments for any criminal justice purpose.

They intend to use body and dashboard cameras, which have been touted as an effective step toward accountability based on the results of one study, yet storage and archiving procedures, among many other issues, remain unclear.

They will use Stingray cellphone interceptors. According to the ACLU, Stingray technology is an invasive cellphone surveillance device that mimics cellphone towers and sends out signals to trick cellphones in the area into transmitting their locations and identifying information. When used to track a suspect’s cellphone, they also gather information about the phones of countless bystanders who happen to be nearby.

The same is true of domestic drones, which are in increasing use by U.S. law enforcement to conduct routine aerial surveillance. While drones are currently unarmed, drone manufacturers are considering arming these remote-controlled aircraft with weapons like rubber bullets, tasers, and tear gas.

They will use fusion centers. Originally designed to increase interagency collaboration for the purposes of counterterrorism, these have instead become the local arm of the intelligence community. According to Electronic Frontier Foundation, there are currently seventy-eight on record. They are the clearinghouse for increasingly used “suspicious activity reports”—described as “official documentation of observed behavior reasonably indicative of pre-operational planning related to terrorism or other criminal activity.” These reports and other collected data are often stored in massive databases like e-Verify and Prism. As anybody who’s ever dealt with gang databases knows, it’s almost impossible to get off a federal or state database, even when the data collected is incorrect or no longer true.

Predictive policing doesn’t just lead to racial and religious profiling—it relies on it. Just as stop and frisk legitimized an initial, unwarranted contact between police and people of color, almost 90 percent of whom turn out to be innocent of any crime, suspicious activities reporting and the dragnet approach of fusion centers target communities of color. One review of such reports collected in Los Angeles shows approximately 75 percent were of people of color.

This is the future of policing in America, and it should terrify you as much as it terrifies me. Unfortunately, it probably doesn’t, because my life is at far greater risk than the lives of white Americans, especially those reporting on the issue in the media or advocating in the halls of power.

One of the most terrifying aspects of high-tech surveillance is the invisibility of those it disproportionately impacts.

The NSA and FBI have engaged local law enforcement agencies and electronic surveillance technologies to spy on Muslims living in the United States. According to FBI training materials uncovered by Wired in 2011, the bureau taught agents to treat “mainstream” Muslims as supporters of terrorism, to view charitable donations by Muslims as “a funding mechanism for combat,” and to view Islam itself as a “Death Star” that must be destroyed if terrorism is to be contained. From New York City to Chicago and beyond, local law enforcement agencies have expanded unlawful and covert racial and religious profiling against Muslims not suspected of any crime. There is no national security reason to profile all Muslims.

At the same time, almost 450,000 migrants are in detention facilities throughout the United States, including survivors of torture, asylum seekers, families with small children, and the elderly. Undocumented migrant communities enjoy few legal protections, and are therefore subject to brutal policing practices, including illegal surveillance practices. According to the Sentencing Project, of the more than 3 million people incarcerated

in the United States, more than 60 percent are racial and ethnic minorities.

But by far, the widest net is cast over black communities. Black people alone represent 40 percent of those incarcerated. More black men are incarcerated than were held in slavery in 1850, on the eve of the Civil War. Lest some misinterpret that statistic as evidence of greater criminality, a 2012 study confirms that black defendants are at least 30 percent more likely to be imprisoned than whites for the same crime.

This is not a broken system, it is a system working perfectly as intended, to the detriment of all. The NSA could not have spied on millions of cellphones if it were not already spying on black people, Muslims, and migrants.

As surveillance technologies are increasingly adopted and integrated by law enforcement agencies today, racial disparities are being made invisible by a media environment that has failed to tell the story of surveillance in the context of structural racism.

Reporters love to tell the technology story. For some, it’s a sexier read. To me, freedom from repression and racism is far sexier than the newest gadget used to reinforce racial hierarchy. As civil rights protections catch up with the technological terrain, reporting needs to catch up, too. Many journalists still focus their reporting on the technological trends and not the racial hierarchies that these trends are enforcing.

Martin Luther King Jr. once said, “Everything we see is a shadow cast by that which we do not see.” Journalists have an obligation to tell the stories that are hidden from view.

We are living in an incredible time, when migrant activists have blocked deportation buses, and a movement for black lives has emerged, and when women, queer, and trans experiences have been placed right at the center. The decentralized power of the Internet makes that possible.

But the Internet also makes possible the high-tech surveillance that threatens to drive structural racism in the twenty-first century.

We can help black lives matter by ensuring that technology is not used to cement a racial hierarchy that leaves too many people like me dead or in jail. Our communities need partners, not gatekeepers.

Together, we can change the cultural terrain that makes killing black people routine. We can counter inequality by ensuring that both the technology and the police departments that use it are democratized. We can change the story on surveillance to raise the voices of those who have been left out.

There are no voiceless people, only those that ain’t been heard yet. Let’s birth a new norm in which the technological tools of the twenty-first century create equity and justice for all—so all bodies enjoy full and equal protection, and the Jim Crow surveillance state exists no more.