A Mayor Declared a State of Emergency to Save Flock Cameras

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:03 Jenessa: And it's not just the security guard. The like VP of flock is like watching your kids swim in the pool.

0:00:17 Jenessa: We're confident the New York Court of Appeals, our highest court, is going to agree that this violates the New York Constitution. And it would mean that flock cameras and everything like it would be completely illegal through the entire state of New York.

0:00:40 Thomas: Hello, and welcome to Opening Arguments. This is episode 1290. I'm Thomas. That over there is real-life attorney Jenessa. What are we going to be talking about today?

0:00:48 Jenessa: Today, I have a grab bag for you, a wrap up on what we've been talking about with data privacy and surveillance. We're going to talk about a state case around flock cameras and automatic license plate readers, a city case in New York that is local and close to my heart, some drama with the mayor, and we've got some legislation coming out of the federal government. So we've hit the criminal and the civil side. We'll hit some administrative complaints, and some legislation, all trying to address this larger issue of your data privacy and Big Brother watching. The City Council of Troy, New York is suing the mayor of New York, which is an interesting position to find ourselves in.

0:01:35 Thomas: Didn't really know you could do that.

0:01:38 Jenessa: I bet you most people didn't know. I wonder if they knew they could find themselves in that position.

0:01:42 Thomas: All right. Well, plenty to talk about. It's not as crazy as last week where the police did everything they could to be the worst in the world.

0:01:51 Jenessa: No this one is pretty wild the city one but no unfortunately I cannot promise that every week we will hear that level of drama let's

0:01:59 Thomas: Dang. Let's take a break. You can support the show at patreon .com slash law. We'll be right back after this and get into it.

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0:02:09 Jenessa: Start with the local drama people have probably been seeing I don't know what your feed looks like but my feed ever since I started researching any of this is just filled with town council meetings and city council meetings of people complaining that their town or city council is thinking about approving AI data centers, Flock cameras. Flock isn't the only company. There's other types of companies that are running this. Flock is just the most famous and the largest, complaining that that either has been approved and people don't like it or they're debating approving it and people voicing their very strong opinions about this. And it has been successful in many places to fight those things. It's a winning bipartisan issue.

0:02:53 Jenessa: This one is crossing the aisle all over the place. Definitely an issue I expect to see a lot of people campaigning on.

0:03:00 Thomas: Well, that's interesting. I feel like those are two different things, but maybe I'm wrong. The data centers I know is very bipartisan. I didn't realize the flock cameras were as well.

0:03:08 Jenessa: They were just talking about it, for example, on the Joe Rogan podcast when they had Mark Andreessen on, well, when Joe Rogan had Mark Andresen on the CEO to talk about Flock and how great it is and how it's saving people's lives. Joe Rogans audience was furious and like absolutely not police state. This is terrible surveillance. People don't like this. Yeah.

0:03:30 Thomas: Wasn't that the shot one? The stupid bullshit shot sound one? I mean, same, same ish idea. Yeah, yeah.

0:03:35 Jenessa: Yes, which is an even dumber use of the technology, but it is the same kind of concept. And having the cameras around watching people, I don't have like a number to give you on like polling data, but in general, this seems to be really uniting people. People it's not popular to have cameras watching people all over the place and the the kinds of stories like we talked about on the last episode where people are getting not just falsely accused but falsely abused in ways that make no sense I just saw one come up the other day a woman was flagged by an automatic license place reader oh your car was involved in a hit and run there was no damage to her car her car didn't even match the description and it took six months to get all of of the charges dropped.

0:04:22 Jenessa: I'm sure the lawsuit is pending already. It's ruined her life. These stories are getting a lot of attention. It is all over the place. And I am seeing a lot of people concerned about this across the aisle.

0:04:35 Thomas: For sure. I was just checking. It does seem like it's pretty united. But I love that. Oh, man, I listened to that Marc Andreessen thing and it was, God, that guy.

0:04:42 Jenessa: He is the worst.

0:04:44 Thomas: But I love that one because it's like, what if we put, you know, like your grandma who thinks every sound is a gun? What if we puts her on every corner and then just had her be like, was that a gun and yeah every time yeah this has got to sound absurd to well everybody but also non-Americans like yes we have so many guns that they're like what if we put microphones places to listen for the

0:04:55 Jenessa: Just call the cops. Just called the cops every time a car backfires. Every time anybody claps. Just call the cops. Well,

0:05:16 Thomas: Guns and then go triangulate where it was that was a real business idea Apparently.

0:05:23 Jenessa: And it's being implemented in some places. It's not just an idea. It said it's in progress, but it's also coming down. There are a ton of cities that have had contracts with flock and discontinued it. That's essentially what we started to see in this city.

0:05:39 Thomas: I also think we should be semi -careful to not merely link it to the bad use of the technology. Cause it's like on one hand, totally, we should talk about the bad uses of it, but it's also the kind of thing where I wouldn't want to set up the expectation like, well, if they did the flock cameras and it just got the right person all the time, then it would be fine. And we'd all be super cool with it.

0:06:02 Thomas: Yeah, there's real privacy concerns. And I'm just surprised Republicans in times past that I've talked to anyway, who have always taken on the wool just don't be a criminal and then you're fine which is funny because they also were like small

0:06:10 Jenessa: Mm -hm. Until all of a sudden they're not.

0:06:16 Thomas: Government they're really just not small government actually I think that I don't even know why I still say that like I think they just have been shown to not actually be small government that was a temporary that's when when the when democrats are in control of their small government every other time they're like yes big brother daddy boot get on get on me oh

0:06:34 Jenessa: It's a common tactic. Scare people and convince people that you are in so much danger. You need us. You lead us to watch everything, and you need to give up your liberty in order to have this safety and it works it works really well to get people to sacrifice their civil rights until it doesn't until people get really creeped out that there's cameras watching I mean these stories of like the flock executives just like watching did you see that horrible story of like oh my god allegedly this was a tech demo they did and that the owner of the business knew they watched the cameras in the girls gymnastics gym for like an hour and they were like oh yeah we were doing a tech demo that's the parents didn't know the kids didn't Know they were being watched

0:07:05 Thomas: I don' t think I did what sorry why would there be fight it just like was able to capture that based on being nearby or something

0:07:30 Jenessa: No they have flock cameras aren't just out on the streets they also offer like security for private businesses too and you can go check the logs of like who logged into the cameras and And it's not just the security guard. It's not just the business owner. The like VP of Flock is like watching your kids swim in the pool. And it was like, no, no. I'm not a creep. It was a security demo.

0:07:53 Thomas: Oh my god okay I did not catch any of that

0:07:56 Jenessa: It was security demo, don't worry, don' worry. And it is like, I am worried, gross. Yeah, it is really bad.

0:08:00 Thomas: Holy crap I genuinely had no idea that that's

0:08:06 Jenessa: The first time I heard it, I was like come on guys. Like this can't be real. And I saw all the reporting on it. And I was holy shit. Flock has access to all these cameras. They can just look, just start looking at their own cameras anytime. And they're like, yeah, we can just show people, you know, people come in and we're advertising our cameras. People can get access to the logs and they've shown it's obviously not just tracking cars because they'll see searches for like man with yellow backpack.

0:08:20 Thomas: Crazy yikes

0:08:37 Jenessa: That's not a license plate.

0:08:35 Thomas: Hmm oh I used to drive a ford man with yellow backpack back in 1995 model

0:08:42 Jenessa: Yeah, like it's just watching you walk down the street all day. It's really upsetting. And I think those stories get out and really, really bother people. And that's when you see, you know, local politics becomes way less partisan because it's your neighbor and you know them and you Know their face. And now you're in the town council meeting, holding up the minutes of like, somebody looked at the pool in the Jewish community center. Why? Why were they watching that? Like, it doesn't make any sense to me.

0:09:11 Jenessa: What's that about? Out. That's where I'm seeing a lot of the bipartisan support start to come from is the community angle of, I don't need to be watched, please and thank you, by a stranger on the other side of the country. No. That is what happened in Troy, New York. Not that whole thing, but people showing up to their city council. They showed up to the city council and said, we don't want this. We don't have flock cameras. We don' t like them. We do' n't like that there' s cameras watching us all day. Get rid of this. City council says, yeah, you know what? We agree. So we're going to put a hold on the contract with Flock was supposed to renew. We're putting a hold on the funding. We'RE NOT DOING THAT. So the mayor declared an emergency, a state of emergency.

0:09:54 Thomas: I can't see any gymnastics, girls. It's an emergency.

0:09:58 Jenessa: It's very important.

0:10:00 Thomas: I'm actively a pedophile.

0:10:02 Jenessa: I gotta know. She declared a state of emergency so that she could fund the, yeah, Mayor Carmela Mantello, one of mine,

0:10:06 Thomas: Oh, it's a girl? Dang. Okay. Joke makes less sense. Wow.

0:10:14 Jenessa: The council of the city of Troy, New York, the Mayor Carmella Mantello. And I'll give you all the index number in the show notes. You can look it up if you'd like. It's pending at this moment. She is justifying that, no, this was a genuine emergency. We have a safety emergency. That contract was coming up and I got to pay the contract. I can't not pay our contracts, right? The real answer is the legislature, the legislative body of the city is the one who gives out the money and the mayor is the executive.

0:10:47 Jenessa: Pretty much how it works with all levels of government, right.

0:10:51 Thomas: There's usually provisions for stuff where it's like, okay, well, the city wouldn't, you wouldn't want to stop like the ability for some crucial function to happen. And so I imagine she's trying to abuse that.

0:11:03 Jenessa: Exactly. The executive law that allows mayors in New York to declare emergencies and use emergency powers, says the public safety is imperiled by, quote, a disaster, rioting, catastrophe, or similar public emergency, or by reasonable apprehension of immediate danger of one of some enumerated emergencies, none of which being the camera turned off. So, um, no. No.

0:11:36 Thomas: Did she have to say Yeah. Does she know something? What is she, Al -Qaeda? Is she Jack Bauer?

0:11:41 Jenessa: I live near there. And as I haven't heard anything, I haven'T seen the whole city burned down. It seems fine. It seams okay. Her friends who live there, they seem fine.

0:11:50 Thomas: Seen any 9 -11s lately? Why is she so invested in it? Is it a corruption thing?

0:11:58 Jenessa: So the city sued. I

0:12:04 Thomas: And who did the original contract and why? Do we know?

0:12:07 Jenessa: Don't know that part. I would have to assume the original would have had to come from the city council. And then we have since had elections and you get a new city council or maybe just the citizens turned out afterwards it's unclear to me exactly the progression of those events

0:12:24 Thomas: I feel like a lot of them happened when no one was paying attention, which is why we should always pay attention. I know it's hard, but that's the local politics message for sure that you're talking about.

0:12:27 Jenessa: Yes I agree absolutely right

0:12:34 Thomas: It's good to always pay attention. And so it does feel like a lot of people are like, oh, wait, we don't actually want this in our town. And beyond that, I also think the councils have seen where it hasn't gone well for them. So maybe that's why. Either I don't know if this was like they elected new people or maybe the council was like, oh, yeah, we've seen how this has gone elsewhere, where they get thrown out pretty quickly.

0:12:58 Jenessa: This city council was elected by the same population that the mayor was electedby also the people who are eligible to elect their city council members are eligibleto vote for that mayor as well like this is the same voting block Show up, everybody. Show up in November. Be paying attention. Pay attention to all of those local races because it's a city. It's not that big a city It doesn't take many votes to swing all of these Unfortunately, yeah, turnout, especially in New York, a lot of these local elections happen on odd years and turnout can be as low as 25 % of registered voters in Newark State We have a huge turnout problem on odd years and in our local elections. We really need to get people motivated. So something to motivate you. This is an Article 78 proceeding, which is a New York specific thing for ordering an official or an agency injunction. Stop doing something. Rid of mandamus. Do something. Do your job. But there'll be an equivalent in other states of, you know, what is the process to sue people in their official capacity, not for damages, but to take or not take an action.

0:13:24 Thomas: -hmm oh yeah no kidding depressingly few yikes

0:14:11 Jenessa: We shall see how that goes. People got out there, did that activism with their local city council. It worked. And then the mayor is trying to just go over the head of the city council and the city population who stood up. Important lawsuit to watch there to see howthat's playing out.

0:14:28 Thomas: So we don't we don'T have any progress on that yeah it's just kind of like okay yeah

0:14:31 Jenessa: Not yet. Yeah, that was filed a couple of months ago. It's just causing quite the dust up around here and a microcosm of what's happening all around the country. You'll see city councils voting against what everybody is showing up and saying, and we will see what happens to them in their elections that come up after that. That's one to watch. Statewide in New York State, we have Umamoto v. Westchester County. Bounty. So this one's interesting. All these other ones are touching on the edges. The case we talked about last week was, well, if you do this facial recognition software, you're going to have to put guardrails and safety precautions around it. The cases we talked about with the Supreme Court were all about you need to put more guardrailes on these warrants. You need to require warrants, thing. This case says very directly the entire concept is illegal.

0:15:35 Jenessa: Having a license plate reader, having a camera that just watches people with no suspicion, just watches people go about their day, just collects the license plate data of innocent civilians with no warrant, no reasonable suspicion, nothing. Thing it is fundamentally unconstitutional the state

0:15:58 Thomas: Using the uh state constitution or the federal constitution noise it's usually better huh

0:16:02 Jenessa: Only that is what's really interesting yeah so I opened this up and I was like oh okay we're gonna finally test it here at no point will they mention the federal fourth amendment they will go for the new york state constitution article 1 section 12 which reads the right of the people to be secure in their persons houses papers and effects against unreasonable searches and seizures shall not be violated and no warrants shall issue but upon probable cause supported by you can see what's happening here right this is the fourth amendment I don't have to finish this we do have a second section that very explicitly mentions what you do with telephones and telegraph communications but otherwise it's basically identical to the constitution the u .s constitution's fourth Amendment. If you think you have a case that the existence of this, taking down every license plate in the entire county, storing it, keeping a database of where people are going without a warrant, without suspicion, violates that, the New York Constitution, obviously you think it violates that's the U .S. Fourth Amendment. Why not bring it up? Tactically? Probably.

0:16:38 Thomas: Yeah. I know that one. Yeah. Oh, well, I would think there's a lot of reasons. I mean, for one, it'll take way less time, right? Well, I guess, is that necessarily true? Gosh, I'm trying to remember.

0:17:29 Jenessa: You'll still have the three -stage process. You're going to have our state court, our trial court, you'll have an appeal, and then you'll also have our highest court. That'll still be faster than the process to get to the U S Supreme Court for sure.

0:17:45 Thomas: Well, maybe you're not even figuring you would get there though. You're probably hoping you win at a lower court and then nobody's able, you know, like the appeals are unsuccessful or whatever, right.

0:17:55 Jenessa: Well, so, okay. I think if you raise this here in New York only, or if you raised the Fourth Amendment and went to federal court, I think no matter what, But it's going to the highest court.

0:18:05 Thomas: I was just going to say, the other reason is if you do the New York constitution, Constitution, the Supreme Court can't even review it, right? So you could keep it away from that whole thing.

0:18:12 Jenessa: Right. From that strategic perspective, either the thought is we're confident the New York Court of Appeals, our highest court, is going to agree that this violates the New York Constitution. And if that's all they say, if they don't say anything about the federal, then there is no federal question and it doesn't go to federal court. And it would mean that flock cameras and everything like it would be completely illegal through the entire state of New York.

0:18:42 Thomas: Unreviewable by the Supreme court.

0:18:44 Jenessa: Correct. And so maybe the goal would be we're confident the New York courts will say that and we're not as confident that the Supreme Court would say that about the U .S. Constitution.

0:18:57 Thomas: Yeah, could be.

0:18:58 Jenessa: And maybe that's just a strategic choice. This is the NYCLU bringing the case rather than the ACLU. And maybe they're just thinking we're going to protect our state. It could be a model for other states if they have similar provisions in their state laws or state constitutions. It sucks to think we're going to defend what feels like a fundamental right on a state -by -state basis but maybe that's a good strategy right now

0:19:05 Thomas: Especially because the universal injunction stuff doesn't exist anymore anyway. I don't know if that would affect it, I guess. Yeah. That's interesting. I mean, cause the other thing is you could always do both, right. I mean, you can do both tracks simultaneously, but there must be a reason, but then, then you're in federal court, I think no matter what. So maybe they want to stay, stay out of that.

0:19:28 Jenessa: Hypothetically hypothetically yes right right if you only raise state issues you could always bring it in state court no matter what but if you raised federal issues the defendant could remove it to federal court If you only raise state issues, you stay in state court the whole way, then it's not reviewable. And so it just stayed with us. As soon as you raise a federal issue, hypothetically, you could bring this up in state court.

0:20:07 Thomas: You can? Can't? Oh, I didn't know that.

0:20:08 Jenessa: Yeah, yeah, state courts are a competent jurisdiction for federal questions. It's just often you would go to federal court. Any number of reasons, either you, the plaintiff, want to be in federal court or the defendant might remove it to the federal court because they're like, I don't want to to be in your rinky -dink state court. I kind of like the state courts. They're like a zoo in the funnest way possible. I enjoy that. I bet a lot of people don't. So it depends on a lot of factors. But if there's any one federal question, you can go to federal court, but you don't have to.

0:20:43 Thomas: I did not realize that. Huh.

0:20:45 Jenessa: Yeah, yeah. Hypothetically, if everybody was happy with it, you could bring your combination of state and federal questions all the way up the state court and just stay there. But inevitably, if they made a ruling about the Fourth Amendment that would then therefore apply to the entire country, it's going to get appealed to the Supreme Court. Technically, if New York's highest court said this violates the Fourth amendment, it wouldn't automatically tell the whole country what to do, but it would be saying what the whole company should be doing.

0:21:18 Jenessa: And so, of course, you would be like, well, the Supreme court should weigh in on this. So they would inevitably appeal. It's either a strategic decision of like, let's just stick with this is going to, we're confident this is going to work, or maybe they are actually like quite worried the Supreme Court would go the other way. I could sit here and evaluate for you. I have opinions about what I think every judge in the Supreme court would say about this, but like, it kind of just, it doesn't matter. It's not going to them. This is a state issue here. One to watch for sure.

0:21:49 Thomas: I have to imagine there's other places and like there's every chance this will go to the Supreme Court somehow or at least up the, you know, circuit courts.

0:21:56 Jenessa: Oh, sure. I'm sure somebody's going to do it. And then the issue will be this would still stand. This is saying New York is more protective.

0:22:04 Thomas: Right. Yeah no, I got that. Yeah we've been talking about this for several weeks now and based on the case history what do you think? I don't know. That's like a sure thing that they would be cool with this.

0:22:16 Jenessa: So definitely Jackson and Sotomayor would be like, absolutely not. They said in like the Google geofence warrant, for example, they wrote a concurrence that was like even with a warrant, this is overbroad and it needs to be tailored better. So like they would think this is overboard. The way this complaint is written, it repeatedly alludes to the fact that there's no amount of police force that could possibly collect all this data exactly they are almost exactly saying alito's tiny constable couldn't do this so you would think how he would rule on that but you know I mean never trust him

0:22:43 Thomas: No number of tiny Shining constables. No, who knows? Yeah. Yeah. Lito and Thomas, I pretty much think are lost causes on this.

0:23:03 Jenessa: Yeah I would agree that they're gonna say it's public thoroughfare and be done

0:23:07 Thomas: You left out Kagan. Is Kagan not?

0:23:08 Jenessa: Right kagan I would think yeah would say like you at least have to have warrants right but like you just never know um how much she might just go kind of textual on like you're on you're in a public place I don't I know well she didn't join jackson and sotomayor in their

0:23:25 Thomas: Did she go bad on one of these cases we talked about? Hmm. Okay.

0:23:33 Jenessa: Concurrence on the google geofence thing when they were saying not only do we agree that you need a warrant we also agree this warrant was defective because it it was overbroad because it didn't limit them enough because it lets you search millions and millions of accounts every single time. She didn't sign on to that part. She might be a little more generous than them. It is a little harder to predict what each of them would do. You know what I mean?

0:24:01 Jenessa: Barrett, we really only have that one decision and it was all about you signed click wrap. Well, nobody's click wrapping on the flock. So it's really hard to predict. Would she she go with the tiny constable analogy, you know?

0:24:00 Thomas: So now my question is, I know we didn't dig into it in detail, but what actually is the specific challenge that you think will happen that just the cameras in themselves can't even be used or that there'll be just restrictions on how the police kind of interact with them and all that.

0:24:31 Jenessa: They use as an analogy the NYCLU when they filed this. They said, okay, as compared to a red light camera, a speed camera, which at least in theory are only triggered by an infraction, these are just always running.

0:24:50 Thomas: It's crime o 'clock somewhere.

0:24:52 Jenessa: Yeah, yeah. And they're just collecting, collecting, connecting. In Westchester County in particular, I think they picked a very very good test case. The police department is just collecting this data and they have a universal blanket policy. Every license plate gets grabbed. They just keep it for the next two years. What are you doing? I think they might be using Axon rather than Flock.

0:25:17 Thomas: Either way.

0:25:18 Jenessa: Whichever company they're using, they have an option. You could collect a plate, check it against wanted vehicles. And if If it's not wanted, delete or delete within a day, delete within two days.

0:25:33 Thomas: It still feels like the number of tiny constables you would need.

0:25:37 Jenessa: It's still outrageous, right? Yeah.

0:25:39 Thomas: For the two years, it's insane. Like the paper of them writing down the license plate. Yeah.

0:25:44 Jenessa: It's Still Not Reasonable. It's still over the top. But at least if it was like, well, we just do a check and then we delete it. I still don't like it. I think you could convince a lot of people that that was not unreasonable.

0:25:56 Thomas: Yeah, I think so, too.

0:25:58 Jenessa: The fact that they just hold it on everyone for two years, what it lets you do is then reconstruct everywhere that car has been. In fact, it has AI systems to reconstruct their entire drive through the town, through the whole county. And they pulled plaintiffs who are like the perfect plaintiff. You know, I work as an escort at the abortion clinic. I regularly drive people in and out of the county, like the person who doesn't want to be tracked through the county. You know what I mean?

0:26:02 Thomas: Two years. Yeah yeah, I bet. Mm hmm.

0:26:28 Jenessa: They picked out really good plaintiffs who do the kinds of things that are completely legal, But wouldn't want to be having their every move tracked. They talk about ICE having accessed these cameras before, despite the fact that New York State has provisions against sharing this kind of

0:26:42 Thomas: Wow. How did they even do that?

0:26:46 Jenessa: Information because this company has a sharing agreement. We can't not. Yeah, it's just like,

0:26:51 Thomas: The company that that can't be how it works.

0:26:55 Jenessa: I know. And this is the problem. This is not New York state decided to do this. The Westchester County Police Department was just like, yeah, we'll get these cameras. The county legislature didn't even authorize it. There's actually a taxpayer -based lawsuit.

0:27:11 Thomas: When you say when you authorize it do you mean the ice thing specifically or just the cameras okay gotcha

0:27:14 Jenessa: The cameras themselves. Themselves. When Westchester County legislature gives a grant to the police department to do, you know, X, Y, Z, you got to pay salaries, you gotta buy a new cop car or whatever. They didn't say, oh, and by the way, go spend, they spent $435 ,263 on a vehicle surveillance system. So putting some of these cameras inside the cop cars as well.

0:27:30 Thomas: Well it's got to be a lot of

0:27:45 Jenessa: So it's almost $500 ,000, almost half a million dollars without authorization from the legislature they just have a block grant to like spend money on law enforcement and they spent almost all of their grant on this yeah uh 2023 to 2024 law enforcement technology grant from the new york state division of criminal Justice Services for $751 ,900. They spent $435 ,000 of that on the vehicle surveillance system,

0:27:43 Thomas: Money hmm oh wow like that was their whole like wow well I mean it is technology I suppose I'm

0:28:21 Jenessa: Technically, kind of. So one of the allegations is when they said go ahead and buy cop technology, they didn't mean spend three quarters of the grant, half a million dollars of your budget on this thing that is like over, above and beyond. Yeah. And that like if the legislature wanted the cops to implement a whole new surveillance system, they would have had to actually authorize this. That's part of the lawsuit. So one level starts at like the lowest level would be for the judge to say this was a misuse of taxpayer funds. And then the next step up would be, well, it would be OK to do this, but the legislature had to have approved it.

0:29:02 Jenessa: The sheriff was not authorized to decide whether or not you can have this kind of surveillance, But the legislature can. The biggest ask is the New York State Constitution bars this. The Westchester County legislature could never have authorized this because it's unconstitutional in our state. That's the big high ask. Yeah, I mean, they spent a ton of money without really getting authorization from anybody. And so this one police department does this for the whole county. The county sheriff's department does this. And now everyone in the state who drives through one of the most populated counties, it's on the way to New York City. So if you commute into New York City, you commute through it.

0:29:00 Thomas: Company right right wow wow

0:29:43 Jenessa: They've put up all these cameras mostly along the border on your way into the Bronx, a heavily Black and Hispanic area on yourway into New York City. It's not in the northern end where all the white people live. It is obviously racialized. They're ticking all the boxes on all the problems that are coming with this, all the surveillance that's going on. That police department makes this decision. It affects everybody in the state, basically, if you ever drive anywhere near there. And ICE

0:30:12 Thomas: And they share it with ice apparently yeah that's

0:30:14 Jenessa: Has access to this. They have access to the system, despite the fact that our governor is like, we're cutting off those, what is it, 287G or 280 -something -G.

0:30:23 Thomas: Wow yeah I think that is Yeah,

0:30:25 Jenessa: We're not going to do that anymore. We're Not Doing This. We'RE Not Doing That. Well, but you have the cameras that ICE can then go into the system.

0:30:31 Thomas: But company policy is, you know, that's so crazy for it to be like, well, corporate says we do. So, yeah,

0:30:38 Jenessa: Yeah, like that can't, come on, man. Not that I would love this if this were all created and run by the government, but it's even a step wilder when it's created and run by a private corporation and then the government subscribes to the channel like I come on it just exactly like oh it's not good man

0:30:55 Thomas: Yeah. They pay for Big Brother Plus. And so they get, hmm.

0:31:02 Jenessa: We'll see how that one goes if that is successful and I think they have a decent chance at it all of new york state could not have this I don't know that it would affect like red lights and speed cameras because they are using that as their comparison of the alternative. That at least is triggered by something that should be reasonable suspicion. This doesn't even have reasonable suspicion when it's triggered. We'll see. One to watch for sure going on in New York State.

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0:31:33 Jenessa: That's all been about criminal. We've been thinking about the different ways that you're being monitored, that cops are utilizing. Something we haven't talked as much about is how this tech is also affecting like kind of every other part of your life. I first came across this bill because Senator Markey out of Massachusetts, yeah, Ed Markey out of Massachusets in the Senate, the sponsor in the House is Yvette Clark in New York, former New York City Council member. They have a bill called the Artificial Intelligence Civil Rights Act. I first got tuned into this because I saw Senator Markey share a study about AI discrimination and hiring as an example of why his bill was so important.

0:31:48 Thomas: Ed Markey. Hmm. Hmm,

0:32:27 Jenessa: Just to give you a little overview, there's a study that I'll link to in the show notes where they looked at some example resumes and example hiring tools. We all know just because you're like really well qualified for a job and everything doesn't mean you're going to get it. You know, you send the resume in and maybe they were going to internal hire.

0:32:50 Jenessa: Maybe Janice in accounting doesn't like your font. Who knows? But you send it to enough places. And as long as you're qualified and your resume accurately conveys your qualifications, eventually you're gonna get one of them. Right. What if Janice and accounting who doesn't Like Your Font is the filter at every single employer?

0:33:10 Thomas: Hmmm.

0:33:11 Jenessa: Now there's a random thing unrelated to your qualifications, and it's the barrier to getting through the first step for the whole thing. So what the problem is, they're talking about algorithmic monocultures. 90 % of employers are doing this, using an AI to filter first, and they're only using like about three of them.

0:33:36 Thomas: Oh, wow. Yeah, so any bias is catastrophic, basically.

0:33:41 Jenessa: If there is something that went on in this one for God knows what, maybe this algorithm just because of whatever went on in the training data, for some reason, the outcome is it never recommends or 99 percent of the time it will not recommend somebody who went to Duke University. Perfectly good school, but just I don't know, it got confused and it doesn't recommend people who went to that school, you would have no idea why you never, ever, ever make it past the, you wouldn't, first you wouldn'T know that you didn'T make it pass the first step. You just never get a call back anymore. And you're just, you just don'T get through. It's because that one AI doesn'T recommend people from your school. And almost every company is using the same one. And now all you have to imagine is what if it's not, they don'T recommend people from Duke University? What if it'S they don't recommend Black people?

0:34:37 Thomas: Yeah?

0:34:38 Jenessa: It's that quick and easy, right? One of the things they looked at was very specifically needing to do this on a position by position basis. So, for example, if your AI heavily recommends Black people for, like, janitor jobs and doesn't recommend them for higher up positions, but you just looked at coming out the other end, getting recommended for any job, you would not detect a disparity.

0:35:05 Jenessa: You have to check each position for disparities. Then you're going to notice, oh, they're getting over-recommended for stereotypical, like, oh all the women get recommended to be a nurse, not a doctor. You can't just check hospital jobs. Really great study, and Senator Markey shared it and said, hey, that's why you guys will love my bill. What's interesting, it's pitched as a civil rights bill. It is like 90 % a products liability bill. It sets out what you have to do if you are making these algorithms and then marketing them as a business product. Machine learning, neural nets, algorithms, this has been around forever. People were playing with this when I was in grad school. There were computational neuroscientists, and it was not new. But marketing it to the general public as a product, different story, for the developers and the deployers, all of these terms defined as like different types of people doing different types OF things with the algorithms, the developers are going to have to, if you're planning to market it for a certain use, like, like, say, reviewing resumes, you will be required to test if there is bias in the system.

0:36:26 Jenessa: And if it turns out there's bias in system, you have to do more in-depth testing, try to correct for that. You can't market a product that has essentially a liability built into it. If you do this testing and don't find any bias, great, but you have to disclose what testing you did in fact to do. It creates a whole system essentially for the developer to be liable if they did not properly test for bias, the deployer to be liability if they use an algorithm that they know is biased. If the developer says, we tested it for this purpose, and then the deployers says, I bought this algorithm to use for writing emails. I'm going to use it to review resumes. A maze. Well, it was not tested for bias in that context.

0:37:19 Jenessa: So now you, the deployer of the algorithm, could be liable because you used it in a context where it was not tested for bias there. So keeping in mind that tools are designed for a certain purpose, when you use them for a purpose they were not designed for, that they were not tested for, bias might exist in a different context. So, it essentially creates liability for both the developer of these algorithms and the deployer of the algorithms, and it can protect them in different ways, but only if they do the right testing for it. The Civil Rights Act already has built into it issues around employment discrimination and other forms of discrimination. It already says disparate impact is enough. You don't have to have intent. We already have rules that if you offload your decision -making to another human, yeah, yeah, maybe they didn't have the negative information, but you did. You can still be liable. But it gets us out of the issue of like, I didn't know. I employed an algorithm that was marketed to me as a perfectly safe, unbiased way to filter. I didn'T know that it had racial bias built into it. So how is it my fault? It should be that other guy's fault. It lays out whose fault it is.

0:38:38 Jenessa: Instead of you, the poor employee, who first of all would have to even find out this happened in the first place. Instead, it's going to put the burden on the developer and the deployer to affirmatively test for biases and to then know who would be liable in what way, in what context, to have to create records about that. So really, it is mostly products liability.

0:39:08 Jenessa: There's a little civil rights in here, but mostly that's what it's laying out is how liability would play out and how to test for the biases that are inherent in these systems, forcing people to do it rather than waiting for them to get caught. Lot.

0:39:25 Thomas: I like it just putting more and more burden on, like, make it, make the testing and all that so burdensome that people just don't do it. I mean, that is one way to protect human jobs.

0:39:36 Jenessa: For real. There's one part that, God, it sounds so good at first and then falls apart. This right to human alternatives. I got so excited when I read this at first. Anytime you were in a position where they were deploying an algorithm to analyze something, you would have a right to say, no, I want a human to review this. Imagine in the healthcare context, like, No, no, no. I want a person to review this, a human being. You have a right to have a human look at this. Then it says rules of construction differential in service or goods. Nothing in this act shall prohibit a developer or deployer from denying services to an individual, charging an individual a different price or rate, or providing a different level or quality of goods or services to an individual if the differential in service is necessary and directly related to the value provided to the developer or deployer by the covered algorithm.

0:40:36 Thomas: Remind me, who was the developer again? Is that the software companies?

0:40:38 Jenessa: Yeah, there's ways it could mean different things, but generally developer made the algorithm, deployer is whoever purchased and used it.

0:40:46 Thomas: Hmm. Okay. Oh, developer or deployer. Oh. Okay, is this all in the the retaliation section right so it's like

0:40:54 Jenessa: It's all related to this idea that you can request a human instead of the algorithm, whatever algorithm they're deploying.

0:41:01 Thomas: Right so I think it's saying if you do that they also can't retaliate against you and it's it seems like it's carving out just because you're providing different levels of service doesn't that that's not like necessarily retaliation is that what it

0:41:16 Jenessa: Yeah and that's what makes me a little worried. Every other part I read it and I was like, of course, I understand exactly what you're saying. That part all of a sudden gets very confusing and ambiguous and unclear. And I am worried what that essentially says is if in order to provide the service they asked with a human instead of an algorithm, it costs you more money, you're allowed to charge them.

0:41:39 Jenessa: If I say I want a human to review my resume, you're allowed to charge me to have my resume reviewed?

0:41:36 Thomas: Is hmm right

0:41:46 Jenessa: Like, I hope that's not what that means. And if I'm not sure what that means, it's going to end up in court. Somebody is going to try to do it.

0:41:46 Thomas: Right huh yeah sure yeah yeah I see what you mean

0:41:57 Jenessa: Maybe I'm misunderstanding. I am worried that deeply weakens this and that it needs to be clearer what they're trying to do or what exception they're going to make. Right.

0:42:05 Thomas: It makes you wonder why it's in there, though. So maybe there's something we're missing.

0:42:09 Jenessa: Maybe there's like a thing I'm not thinking of that is actually really important to carve out. But boy, I wish they would just name it or something or give me an example or what is I don't know. I'm worried that that weakens. I have this right to demand a human.

0:42:17 Thomas: Interesting. Yeah. Yeah.

0:42:24 Jenessa: But you know what I mean? So I don't love that part. I am a little worried about what that means in general. The idea that I can be like, I'm so sick of this. I want a human now to review my things. I do not want a computer, reviewing my health insurance records. That is great that you would just have a civil right to insist on it, I think is really important. They've also put in here for the enforcement, so you would have a private civil right of action, like I was discriminated against because of this. They also let your state do it. If they think something is systemic and affecting the entire, you know, not every single human, but if it was affecting our state, your AG could go go after a company for this in addition to enjoining like stop using this algorithm it's discriminatory uh enforce compliance with the act blah blah they can get civil penalties in the amount of 15k per violation or four percent of the defendant's average gross annual revenue over the preceding three years whichever is greater that is a ton of money depending on the company it's got got teeth it's

0:43:32 Jenessa: Got real teeth if you were to not properly test for bias throw these algorithms in there it turns out it just denies health insurance coverage for every asian person your state ag could go after that health insurance company for four percent of their gross annual revenue for the last three years gross not net so like they don't get to hide behind like you know oh, expenses.

0:43:58 Thomas: That's a bit because we've seen so many examples of penalties just being woefully inadequate to do anything. So that's pretty cool.

0:44:05 Jenessa: Yeah, it could do a lot. And I think this would be really popular with a lot of people that companies have to actually test their product before they put it out there.

0:44:14 Thomas: Yeah you know what's also funny is that Congress could just do this with everything.

0:44:19 Jenessa: Yeah. Yeah, kind of.

0:44:19 Thomas: Like if we wanted to live in a nice country congress could pretty much just do this with every single kind of company and make them not suck dick like they totally could they're calling it regulation I

0:44:33 Jenessa: Yeah, it's really that's all this is. And it just would require that, you know, before rather than implement the product, hurt people get sued before you implement the product test if it's going to hurt people like imagine that and it sets out how to do it in a way that's really thoughtful. I don't have a lot of complaints. I think this is a really good idea, and I think it could get bipartisan support. As soon as some tech bro starts dumping money into opposing this, we'll see what happens.

0:45:09 Thomas: Guess this is a different story uh than the than the flock cameras or whatever this is just the like ai bill of rights right hmm interesting

0:45:13 Jenessa: It could apply to that if that was also creating bias. Yeah, if your police department finds out the face detection software, the license plate reader just seems to always pull people over in the black neighborhood yeah you could totally apply

0:45:24 Thomas: Oh good point yeah well I was gonna say I I feel like what they're gonna going to want to try to find is some like baby Ashley type, you know, some kidnapping. They're just hoping that there's some kidnapping that they can like solve with the cameras. And they'd be like, look, you all need this. And then everyone would be like, you're right. Full surveillance all the time. So nobody kidnap anyone until we get these cameras out. Weirdly, that's actually also in your interest, kidnappers.

0:45:47 Jenessa: Yeah everybody keep it

0:45:56 Thomas: Be on your best behavior so we can get rid of these cameras is and you go back to your kidnapping. No, it's, I mean, I feel like with phones and everything like it's so ubiquitous anyway.

0:45:55 Jenessa: Together you're not wrong yeah yeah it's true it's real yeah

0:46:06 Thomas: I don't know how many I mean I haven't checked lately, but I don't know how many LIKE PEOPLE ARE ABLE TO GET AWAY WITH THAT KIND OF CRIME ANYMORE. I DON'T THINK IT'S AS MUCH AS IT USED TO BE.

0:46:15 Jenessa: I feel like people are mostly getting caught with the big stuff nowadays because also like all of this presumes that people are like somehow like genius escape artists and that we need cameras everywhere. And it's like, people are not bright when they do. Most people are Not like some sort of criminal mastermind.

0:46:36 Thomas: Yeah, well most criminals.

0:46:36 Jenessa: They're just acting on impulses. Yeah, exactly. Like, if you can think carefully enough about how to avoid getting caught doing something, you can also think carefully Enough about why you don't want to do any of that in the first place. That's usually how that goes.

0:46:49 Thomas: Yeah or not need to commit a crime probably.

0:46:52 Jenessa: Also, all of that. Yeah. I mean, there's so many factors that go into this kind of thing. It's just, just no to all of this. I don't need an AI reading my resume. I Don't Need an AI Reading My Health Reports. I DON'T NEED AN AI READING MY LICENSE PLATE. I DO NOT NEED ANY OF THIS. IT'S NOT NECESSARY. NO THANK YOU TO ALL OF IT.

0:47:12 Ad: [Ad break 3 — ad music]

0:47:12 Jenessa: We got a couple minutes. I can leave you with one that this is going to sound like a nitpicky gotcha, but the more I read about it, the more I was like, oh my god, this is actually really serious.

0:47:21 Jenessa: As you walk around town, I don't know how much, I DON'T KNOW WHAT YOUR NEIGHBORHOOD'S like. I do that a lot. Depends on your sidewalk situation, I guess. You'll notice like, I mean, there's signs everywhere, right? Obviously a giant telephone pole is just, is what it is. But if you have like little, you know, stop signs and street signs and blah, blah, blah, they'll be constructed one of two ways, really. It'll either be that metal that's like full of holes. It's all perforated.

0:47:44 Thomas: Yeah like corrugated or something or no maybe not.

0:47:47 Jenessa: I forget what the name is for it.

0:47:49 Thomas: I CAN'T REMEMBER EITHER. Okay yeah that's that right

0:47:51 Jenessa: It's that like very flimsy full of holes. Or I had never noticed this before until it was pointed out to me. The thicker ones have at the bottom what's called a slip plate. They're not just in the ground in cement the way that your random flagpole is or your laundry pole or whatever. It's all designed so that if you went off the road and hit this, instead of shearing through your car like a sword, it folds under your car.

0:48:20 Jenessa: Huge important safety issue. So when your Department of Transportation goes around installing signs, they follow their rules and they do this. And then a private corporation shows up and starts installing cameras and they stick it in cement in the ground.

0:48:37 Jenessa: Yeah, it's like a huge problem. If there are people putting up any of the license plate readers, red light cameras, speed cameras, the school zone speed cameras. A lot of those are private corporations and they're put up by the corporation. You walk down your neighborhood and you're like, I've never seen that thing before. That's new. They might not have followed the regulations. A ton of these cameras are really unsafe. If somebody drove off the road and hit that. Yeah, great. It's a new safety. Oh, my God. It's going to detect a stolen car. And if you drove off the road and hit it, you're going to die. It's not just a gotcha. If these are going up in your town, walk around, look at the base of them. They should have a slip plate. And, if it's not a slip plate, if not installed at the right height, that is illegal and you can call your Department of Transportation and it should go because it could literally kill someone if they drove off -the -road and hit that thing.

0:49:33 Thomas: Not saying we should test these by running over as many as

0:49:36 Jenessa: I would not because the whole reason those safety features exist, the reason, I didn't know any of this.

0:49:43 Thomas: Possible yeah just causes less damage yeah

0:49:43 Jenessa: I had no idea. Yeah, your stop sign is on that perforated metal because in a fight between that sign and your car, your car is going to win and it will fold under the car. I had No, I just thought they were cheap. That's why they put them on. But it's actually a safety feature. It is worth checking on that. Like, yes, it could be a way to get rid of the camera, but also in and of itself, it is a problem that private corporations are out there doing this and not following Department of Transportation rules. Check. If it goes up in your neighborhood, you want to know because car accidents are like one of the leading causes of death for most age groups.

0:49:55 Thomas: Yeah never would have thought of that angle

0:50:25 Jenessa: Yeah, I wouldn't have either. And then it just started popping up in my feed because there's a guy who does guardrail safety and checks on guardrails. And he was like, hey, by the way, what is this camera doing here that's just like a death trap in front of the guardrail? Not great. Be on the lookout, everybody. But there's people doing things to try to make it better. There's a whole bunch of lawsuits and bills and people trying their best. And you can be one of them. Go to your city council and complain.

0:50:47 Thomas: Awesome so those seem to be a bunch of the ways that people are using the legal system to fight back against these flock type cameras pretty cool. Well, we'll keep an eye on them I'm sure there's going to be updates.

0:50:58 Jenessa: Yeah, I will put out a little check every once in a while and I will give us updates when we hear back from some of these lawsuits.

0:51:04 Thomas: Awesome. Well, what a great series on this has been. It gave us so much information and so many interesting stories as well. So thanks so much, Jenessa, for looking into this.

0:51:13 Jenessa: Good talking to you.

0:51:50 Thomas: It's crime o'clock somewhere.

0:51:53 Jenessa: My neighbors are having their house painted. So there's a guy out there with a ladder who's like, what if I move it another millimeter? I think he may be done on moving the ladder. Nope, he's still with it. How much can you mess with a ladder? Like, just put it in a spot.

0:52:07 Thomas: They're calling it regulation.