One of my fustiest and most out-of-touch opinions is that progressives need to rediscover the political power of civil liberties. Such declarations usually accompany free speech controversies — some professor gets canceled at some college with an 11 percent acceptance rate, everyone starts tweeting about who has the right to say what in which settings, and by the time it’s all forgotten two days later, nobody really has any clarity on what freedom of speech actually means. I will admit that as something of a free speech absolutist, I am not immune to such temptations. But I also acknowledge that these episodes don’t really have much to do with civil liberties at all. Instead, they use a vaguely defined ethos of free speech as a prop in an ongoing power struggle between two sides that have both largely lost the plot.
This is all very unfortunate because Americans on both sides of the aisle still value civil liberties. Opinion polls on these issues are always a bit shaky because the questions assume the respondents all have a fixed idea of what “free speech” or “civil liberties” means. But for data’s sake, the Knight Foundation found earlier this year that more than nine out of 10 Americans agreed that “protecting free speech is an important part of American democracy.” A 2021 Associated Press poll found that Americans have lost faith over the past decade that the government defends their basic freedoms.
What should be concerning to progressives, then, is that controversies over free speech are far more likely to be championed by the right at a time when Republican legislatures across the country are proposing and passing laws that restrict everything from what can be taught in the classroom to where people can hold protests. The former have been met with great resistance from Democrats, although not necessarily under the cover of civil liberties concerns. Rather, the rebuttal from the left seems more focused on calling out the bigotry of these laws and the dangers they might pose to the health of oppressed people. These claims are true, but I don’t believe they have much persuasive power outside of the already converted.
A recent case in San Francisco provides a compelling example of how a civil-liberties-based framing can help push a progressive agenda. The city has been enveloped in a lengthy and contentious debate about public safety, one that culminated in the recall of the former district attorney Chesa Boudin. His replacement, Brooke Jenkins, has talked a big game about law and order since being appointed by Mayor London Breed, and has even hinted that she might undo some of the progressive actions that Boudin undertook to reduce sentences for drug crimes. Last week Jenkins, backing Breed and the San Francisco Police Department, signaled her support for a 2021 plan now in front of the city’s Board of Supervisors: They want the S.F.P.D. to have broad access to private surveillance cameras around the city, including the Ring and Nest doorbell units that homeowners use to deter package thieves.
Currently, the police department can access private surveillance cameras only when there is a “serious risk of physical injury or death,” according to SFGate. Breed, Jenkins and the S.F.P.D. want to expand this so that it can cover a wider range of crimes, as well as help them to monitor high-crime parts of the city, which in San Francisco means Black and Latino neighborhoods. Last week, the city’s police chief, William Scott, justified the policy, saying, “We have locations in the city where we have gun violence that is pretty pervasive and — traditionally, there are intersections and corners where we seem to see the same thing repeated over and over again. If we have information, for instance, about the possibility of a retaliatory shooting and we have a bunch of people hanging out in a corner where all the ingredients are there for this event to happen, to me it just makes sense to be able to tap in if surveillance cameras are there that are privately owned.”
The measure has been met with stiff opposition from civil liberty and social advocacy groups, including the California chapter of the Council on American-Islamic Relations, the A.C.L.U. of Northern California and the Electronic Frontier Foundation, which co-authored a letter in dissent and argued that the proposal “massively expands police surveillance, but instead of using city-owned cameras, the S.F.P.D. can quickly appropriate thousands of private feeds focused on homes, medical clinics, nonprofit groups, and even places of worship,” and added that it would allow the S.F.P.D. to “monitor people and stockpile footage of people going about their daily lives.”
The S.F.P.D. declined a request for an interview but sent me a statement from Chief Scott. “We definitely understand that there is a balance between what we need to do in this city with private surveillance cameras and the constitutional privacy that we enjoy in this country,” it said. Speaking presumably on the need for the program to stop crime, Scott’s statement read, “What we’d like to do is be able to, in the appropriate circumstances, live monitor this activity as it’s occurring, so we can have a better chance of apprehending those committing those acts.”
What this effectively means, according to Matt Cagle, a senior staff attorney for the Technology and Civil Liberties Program at the A.C.L.U. of Northern California, is that some neighborhoods in the city will be placed under pre-emptive watch. Cagle also pointed out the vagueness with which the proposal has been written, especially when it comes to which cameras can be turned on and under what circumstances. “Power loves a vacuum,” Cagle told me, and said that law enforcement would likely push that vague language “to the fullest extent of what they can do.”
The A.C.L.U. of Northern California also commissioned a poll that showed 60 percent of San Franciscans oppose the proposed expansion of surveillance powers. As noted before, I don’t put too much stock in opinion polls like this, because they tend to be dependent on the wording of the question and pull from relatively small sample sizes. But the framing itself is interesting because it approaches a progressive concern, like police overreach in poor, minority neighborhoods, through a broader concern about the surveillance of everyone.
One can believe, for example, all of the following: Crime is out of control in San Francisco, Boudin deserved his recall, and the police need more funding. But that person will likely still feel uneasy about the prospect of being filmed at all times. Within blue cities like San Francisco, which may have turned against the sort of progressive tactics that Boudin employed, the people who want to get tough on crime may very well still be concerned about warrantless racial profiling.
I have written quite a bit in the past few months about what I see as a shift in Democrats in urban areas, one that has ushered in a host of new mayors who promise to be tough on crime. Perhaps it’s naïve, but I believe there is a limit to how far these Democratic strongholds will go in the name of cleaning up the streets. In San Francisco, for example, even people who advocated Boudin’s recall said they supported criminal justice reform, and many of the policies he promoted remain popular.
This is where progressives should rely on civil liberties language. By calling out that warrantless and pre-emptive surveillance is wrong and un-American — full stop — you train the focus on the act itself, and not the larger, slipperier context that prompted it. You do not have to argue, for example, that while violent crime is up, other crimes are not. These arguments might be true, but it’s exceedingly difficult to convince the public to not just worry about the violent crime part and demand something must be done. All citizens should be concerned with the excesses of what that something may be. To accomplish that broader consensus, you have to argue that it could potentially touch everyone’s lives, and not just people in high-crime neighborhoods.
Over the past 20 or so years, the proliferation of doorbell cameras, security cameras, data sharing and even cellphone videos has laid down the infrastructure for a frightening grid of surveillance that reaches every part of our lives, likely in ways we cannot yet grasp. But even within these dizzying times, there are still some clear choices that can be made. Refusing to allow police officers and city officials the right to tap into thousands of cameras and use them without clearly defined limitations should be an easy choice, and one that’s supported by much of the public. But to make sure these types of measures are spotted and properly resisted, we need to take civil liberties seriously and not just think of them as fodder for the culture wars.
Jay Caspian Kang (@jaycaspiankang), a writer for Opinion and The New York Times Magazine, is the author of “The Loneliest Americans.”
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