Comment by jMyles | Hacker News Reader

Comment by jMyles | Hacker News Reader

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> How does the first amendment protect your right to photograph others

I'll leave you to read the numerous SCOTUS rulings (and, for the purposes of freedom in other jurisdictions, analogous court rulings) instead of trying to explain myself.

In short: the fact that a photon bounces off of your face does not entitle you to control every person who might capture it, in perpetuity, throughout time and space.

I was born with eyes capable of a materially identical task as a CMOS sensor: must I look away any time you I see you in public? Must I refrain from remembering that I saw you? If I testify that you shot my friends and neighbors with impact munitions - a nightly occurrence in this city - will it be as reliable as if I had photographed you and compared your face to an index of known violent repressive forces in Portland?

I find this logic to be the maximal case for ego: to believe it, you have to believe that light itself is made for you alone.

> how does it protect your doing whatever you want with that photo

Do you generally dispute that people have a right to think about and process data however they wish? Must I cover my ears if a state secret is uttered by a journalist or friend? Must I refrain from thinking critically about whether it implicates a powerful person in criminal activity?

Well, isn't it the same if we, the people of Portland, seek to compile photographs of police officers who have been repeatedly abusing and terrorizing us and use them to recognize their faces?

> their right to privacy, which is clearly secured by the forth amendment?

I know of no such plausible argument being made about the faces of people appearing in public, and certainly no actual jurisprudence in the Western legal tradition.

When in public, you can be reported on. You can be photographed and recorded. If you decide to spray chemical weapons at people, you can be held accountable.

Just because your eyes are sort of like a cmos sensor and your brain sort of like a recording device doesn't mean its exactly the same they very clearly banned a process on an external computer. You are free to run your brains built in facial recognition on anything you photograph and write them down in pen.

What you aren't allowed to do is feed a stream of data to a computer and run facial recognition over the stream.

It's pointless to pretend these activities are legally or literally equivalent when this just isn't so. Additionally the first amendment seems to only apply in this context if it pertains to freedom of the press. Presumably you would have to argue that the inability to ask the computer to guess the identity of all and sundry materially impaired your ability to report on current events.

Most of the people likely targeted by this law are apt to be neither professional press nor citizen journalists and wont be able to take advantage of this argument. Whereas citizens photographing cops would likely be able to make this argument.

> Additionally the first amendment seems to only apply in this context if it pertains to freedom of the press.

That wasn't my understanding. I thought that SCOTUS had repeatedly ruled that you had absolutely no expectation of privacy when in a public location? It seems weird to me to have a legally protected right to make recordings that doesn't extend to their use (at least for personal purposes).

Even so, I suppose the ordinance might be legal because I've never heard of a "right to use of facial recognition technology" or anything that would otherwise imply that. That being said, I find the idea a bit disquieting. I value privacy highly and have serious concerns about the current state of affairs, but specific algorithms being disallowed on the level of an individual person is highly concerning to me.

Isn't it only large actors (ie corporations and governments) where abuse becomes a serious concern due to their geographic reach and available resources?

It's not that there's a right to facial recognition technology but that there's an implied right that, if I take a photo, that I can use that photo. (Except in some specific ways, e.g. using it in some libelous way to misrepresent the subject, certain types of commercial use like ads, etc.) Certainly if I take a picture of a person there can't be a blanket prohibition on trying to figure out who that person is.

In the US I have pretty wide rights to take a photo in a public place for editorial purposes and to publish it (which is a variant of freedom of the press).

Can't you exercise your freedom of the press without automatically subjecting all passers by to facial recognition? For example one could argue that the freedom of the press would be paramount were you wanting to write a story about an event that had happened while using facial recognition to identify participants and or witnesses without letting people gather info on every person on the public street at all hours from now until forever?

You having no expectation of privacy means that the person being photographed has no constitutional rights as far as the constitution to protect. Conversely the photographer has no first amendment right to take a picture save freedom of the press.

If the picture isn't being captured for the purpose of informing their fellow citizenry they have no first amendment rights at all to protect in this scenario.

If both of these things are true this law creates a new right not to be subject to facial recognition which if it doesn't contravene state or federal legislation is perfectly legal.

Do you have a legal theory as to why this law would be problematic? The first amendment seems like a dead end but if you would like to argue it could you please expand on the matter?

> Conversely the photographer has no first amendment right to take a picture save freedom of the press.

Why do you say this?

> If the picture isn't being captured for the purpose of informing their fellow citizenry they have no first amendment rights at all to protect in this scenario.

Even if free press is the only basis for protection of the practice of photography under the constitution, there is no requirement that press activities be exclusively for the purpose of "information their fellow citizenry", and no requirement that the person in question be part of the "citizenry" in the first place.

Someone taking photographs in public is not required to disclose all photographs in order for this activity to be protected. Press generally covers not only publication, but documentation, research, and other press activities. If I take a photo in public, the subsequent activities of performing research and analysis of that photo are also protected activities.

I would say this because the literal text is

>Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances

Wherein do you construe taking a picture to be a first amendment situation save where it constitutes an act of communication? Press in current context could be stretched broadly enough to fit basically anyone with a cell phone but in order for it to be protected it has to be capturing something to share with your fellow man.

A person taking a picture to share with their fellow man or even using facial recognition to enrich that communication with more info could well be protected but an org feeding a video stream into facial recognition to blanket gather info on your fellow man would be apt to be disallowed.

> I would say this because the literal text is

Isn't this statement exactly what the 9th amendment says not to do when interpreting the first 8?

> A person taking a picture to share with their fellow man or even using facial recognition to enrich that communication with more info could well be protected

...well, that's what's prohibited by this law.

> an org feeding a video stream into facial recognition to blanket gather info on your fellow man would be apt to be disallowed

...and that's not prohibited by this law.

That's what we're dealing with here in Portland.

I hate to be an RTA guy, but did have you taken the opportunity to read the ordinance?

From TFA

> The first bars all city bureaus from acquiring or using the controversial technology with minimal exceptions for personal verification.

> The second blocks private entities from using the software that scans faces to identify them in all public accommodations.

Firstly the city isn't allowed to use facial recognition save for identifying its own personnel. Second private entities ie everyone else including individuals and corporate personages aren't allowed to use it in all "public accommodations"

Here is a legal definition of public accommodations

https://www.law.cornell.edu/uscode/text/42/12181

7E is (E) a bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment;

Here is a "private entity"

> (6) Private entity

The term “private entity” means any entity other than a public entity (as defined in section 12131(1) of this title).

I originally just read the article but reading the full text of the law doesn't change my perception now that I have read it.

It absolutely would forbid walmart from streaming their cams to facial recognition software and while in theory citizen journalism could be negatively effected it seems trivially arguable that any usage that serves the interest of citizen journalism is already covered by the first amendment.

If you wonder WHY people want to ban facial recognition realize it is notoriously inaccurate when applied to a large corpus of data especially with bad photos wherein missidentification can trivially lead to the total destruction of people's lives. Case in point.

https://projects.tampabay.com/projects/2020/investigations/p...

I notice that you conveniently decided to exclude, among the exceptions listed, "In automatic face detection services in social media applications." I wonder why?

I didn't choose to copy and paste the entire article into this discussion I presume this means that people can post photos to facebook and facebook can automatically tag people.

I'm assuming this exception is to preserve what a lot of people regard as desirable functionality.

Aside from the rather odd argument about hardware, letting authorities decide whether someone's use of photography to record events counts as legitimate journalism sounds rather unsettling.

Also photography can directly be considered a form of speech (e.g. artistic expression).

I don't think that the argument about hardware is "rather odd", I think it's the crux of the issue in Portland right now.

Our police bureau is terrorizing our citizenry before our eyes. So we brought cameras. So they covered their badges. So we started working on facial recognition. So they banned it.

If our eyes were sufficient to show the world what's happening and to document which cops are the most culpable, there'd be no hardware discussion at all.

I don't think anyone would consider the city or a mall running their security cameras data through facial recognition an artistic endeavor.

I don't think anyone would consider someone taking a picture in public to run afoul of this law.

> I don't think anyone would consider someone taking a picture in public to run afoul of this law.

I guarantee you someone will. But my point was about the first amendment being applicable to the topic of photography, not about a state law. And art was an example, not a definition of speech.

So you're telling me that, once you enter a place that I can see, you get to examine whether I'm using a biological eye or a CMOS sensor or a cybernetic implant or whatever else? And then, having examined that, you get to assess what I'm doing, in private, with the data that I collect from my sensor experience of existence. But it's your privacy that's implicated?

How far does this philosophy extend? If I have a telescope on another planet and process the input in a way that you don't like, can you extradite me to Earth and charge me with a crime?

It would be helpful to keep the conversation in scope of things that are real or could happen.

It's perfectly reasonable to use a hypothetical to reveal how consistent or measured an argument is.

And none of what I've said here is so far removed as to be useful. Wearable or implantable cameras are coming. Taking photographs of one jurisdiction from another jurisdiction happens all the time.

You absolutely can as an single individual, with that CMOS camera on your person. It's when we start using a networked database to store faces, this is when it should become unlawful IMO.

There's a big difference between a human brain and a vast 24/7 all-seeing database which can identify an individual out of millions of faces.

This law effectively prohibits the former while allowing the latter (with the exception for "social networking"). That's the whole problem here.

This is so obviously designed for the cops.

Yes, but without criminalizing individual's right to video recording in public - sometimes this is necessary when you're dealing with bullying or sociopaths (where covert body cameras can be highly effective). Same for exposing animal rights abuses in farm. You want to be gather as much evidence, preferrably video, as you can in those circumstances?

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