The slippery slope of protest surveillance
President Trump's call to treat antifa supporters like terrorists could be a green light for high-tech surveillance of dissidents.
Why it matters: It's unlikely the Trump administration can designate antifa as a terrorist group in any legally meaningful way, but the declaration gives law enforcement tacit approval to use a plethora of tech tools to monitor protesters and left-leaning activists.
The big picture: The move comes as the U.S. struggles with a pandemic and nationwide protests over the death of George Floyd at the hands of Minneapolis police, and the president's opponents are sounding warnings about his strong-armed approach.
Driving the news: Trump tweeted Sunday that the U.S. "will be designating ANTIFA as a Terrorist Organization."
- It wasn't immediately clear what that would entail, as legal experts have noted that there's no existing designation for domestic terror groups, and "antifa" refers to a general commitment to opposing far-right ideology through direct action, not any one organization.
- Since antifa is so amorphous, the authorities also have a very free hand in who they decide to include in the group.
Even without any official designation, law enforcement could step up the surveillance of progressive activists' activity and communications.
- Trump ally Rep. Matt Gaetz suggested acting along those lines in a tweet this week seeking to explain his call for antifa adherents to be "hunt[ed] down."
- The Justice Department immediately followed up on the president's tweet with a statement by Attorney General William Barr that the FBI's terrorism task forces would investigate participants in the Floyd protests for possible antifa connections.
Where it stands: Police in the U.S. already deploy a variety of tools for conducting surveillance.
- Law enforcement agencies around the country contract with Clearview AI, a controversial startup that scrapes billions of images posted around the internet to identify people from sources like security videos.
- Police can also obtain Americans' location data to track their movements over time. Wireless carriers, device makers and app developers all have reams of such detailed records.
- Federal, state and local law enforcement agencies around the country can also use surveillance devices to track people's location in real time, as the American Civil Liberties Union has long documented.
Of note: Lawmakers and advocacy groups have warned that new contact-tracing technology developed to fight the spread of the coronavirus could be repurposed to track Americans' movements and interactions outside of the pandemic context. Lawmakers have introduced several bills recently to keep that from happening, but their fate is unclear.
- All this comes as efforts to craft comprehensive federal legislation to protect Americans' privacy online have run aground.
Yes, but: The government still faces some checks on its ability to conduct some targeted surveillance. A 2018 Supreme Court ruling, for instance, found that police need to get a warrant before using cell phone location to retrace a suspect's steps.
- Still, warrants may be easy to come by from judges sympathetic to the idea that leftists are terrorists. And the U.S. has a long history of finding ways to skirt limits on government surveillance powers.
Be smart: A message from the country's highest office that some American citizens are enemy combatants is sure to resonate with online vigilantes, too.
- A New York Times investigation last year showed how easy it is to identify and track individuals using publicly available, ostensibly anonymized data harvested from smartphone apps.
- Just this past weekend, Aaron Dessner of rock band The National became the target of an online harassment campaign after being misidentified as an antifa riot instigator because he vaguely resembled a man who appeared in footage of an Ohio protest.
History lesson: In the 1960s and '70s the FBI's COINTELPRO program, exhaustively documented by later congressional investigations, conducted large-scale spying on progressive organizations and leftist activists.
The bottom line: The Trump administration is already eager to ramp up government surveillance capabilities in the name of fighting terrorism. That appetite could easily expand when the alleged terrorists are also domestic opponents of the president.