Response to Capitol riot could hurt minorities, civil libertarians say

Civil liberties advocates are warning that the insurrection at the U.S. Capitol could lead to new police and surveillance powers. If history is a guide, they say, those tools could be used against Blacks and other people of color in the justice system, not the white rioters who stormed Congress.

Albert Fox Cahn watched in horror last week as rioters beat and shoved their way into the U.S. Capitol. The civil rights lawyer said the images made him angry.

"You know, in that moment, I myself felt that same anger, that I want to catch these guys after seeing what they did to our Capitol," Cahn said. "And that anger, that frustration, that desire for justice, can lead us to very dangerous places."

Cahn is executive director of the Surveillance Technology Oversight Project, a group that fights what he calls invasive surveillance technologies. Those include tools like facial recognition and the use of cellphone location data.

Cahn says he worries that all of those things are on the table as lawmakers confront how close they came to danger last week — and that such things are being embraced even by members of Congress who have been open to the idea of reducing police power.

Incoming Senate Majority Leader Chuck Schumer, a New York Democrat who previously supported such a move, has now proposed expanding the federal no-fly list to add Capitol rioters.

"These insurrectionists, many of whom are at large, should not be able to hop on a flight," Schumer said at a news conference this week.

The head of the FBI's Washington Field Office, Steven D'Antuono, would not rule that out at a separate news conference in Washington, D.C.

"As for the no-fly list, we look at all tools and all techniques that we can possibly use, within the FBI, and that's something we are actively looking at," he said.

Critics say the no-fly list is bloated and often ineffective since it has information that can be wrong or out of date. The list has provoked lawsuits from Muslims who allege they were put on the list because of racial profiling.

The deadly assault on the Capitol is also reviving the idea of creating a new federal crime of domestic terrorism. That idea has won support from former national security prosecutors and a trade group for FBI agents. President-elect Joe Biden has expressed openness to a new domestic terror law too.

But Gregory Nojeim, who directs the Freedom, Security, and Technology Project at the Center for Democracy and Technology, says not so fast.

"The reason there's not such a crime is that there's concern, and it's legitimate, that such a statute could be used to squelch free expression," Nojeim said.

Nojeim pointed out that the acting U.S. attorney for the District of Columbia, Michael Sherwin, is already considering the charge of sedition against some culprits. That carries the potential for a 20-year prison sentence.

"It would be a shame if the response to poor policing was to give the police more authority that would infringe on civil liberties," Nojeim said.

Rep. Ilhan Omar, D-Minn., agreed.

This week, Omar tweeted: "We cannot simply expand the tools that have oppressed Black and Brown people. The answer is not a broader security structure, or a deeper police state. We have to stay rooted in a love of justice and of human rights and of civil liberties as we seek accountability."

FBI officials wouldn't confirm whether they are using facial-recognition tools to help identify members of the mob that stormed the Capitol. But civil rights lawyers have a hunch they are.

Faulty facial-recognition tools have led to wrongful arrests of Black men and an ongoing lawsuit in New Jersey.

"Until those racial disparities are fixed," said Catherine Crump, director of the Samuelson Law, Technology & Public Policy Clinic at the University of California, Berkeley's School of Law, "this is not a technology that should be deployed on a widespread basis."

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