Criminalizing Masks at Protests is Wrong

There has been a crescendo of states attempting to criminalize the wearing of face coverings while attending protests. Now the President has demanded, in the context of ongoing protests in Los Angeles: “ARREST THE PEOPLE IN FACE MASKS, NOW!”

But the truth is: whether you are afraid of catching an airborne illness from your fellow protestors, or you are concerned about reprisals from police or others for expressing your political opinions in public, you should have the right to wear a mask. Attempts to criminalize masks at protests fly in the face of a right to privacy.

Anonymity is a fundamental human right.

In terms of public health, wearing a mask while in a crowd can be a valuable tool to prevent the spread of communicable illnesses. This can be essential for people with compromised immune systems who still want to exercise their First Amendment-protected right to protest.

Moreover, wearing a mask is a perfectly legitimate surveillance self-defense practice during a protest. There has been a massive proliferation of surveillance camera networks, face recognition technology, and databases of personal information. There also is a long law enforcement’s history of harassing and surveilling people for publicly criticizing or opposing law enforcement practices and other government policies. What’s more, non-governmental actors may try to identify protesters in order to retaliate against them, for example, by limiting their employment opportunities.

All of this may chill our willingness to speak publicly or attend a protest in a cause we believe in. Many people would be less willing to attend a rally or march if they know that a drone or helicopter, equipped with a camera, will take repeated passes over the crowd, and police later will use face recognition to scan everyone’s faces and create a list of protest attendees. This would make many people rightfully concerned about surveillance and harassment from law enforcement.

Anonymity is a fundamental human right. EFF has long advocated for anonymity online. We’ve also supported low-tech methods to protect our anonymity from high-tech snooping in public places; for example, we’ve supported legislation to allow car owners to use license plate covers when their cars are parked to reduce their exposure to ALPRs.

A word of caution. No surveillance self-defense technique is perfect. Technology companies are trying to develop ways to use face recognition technology to identify people wearing masks. But if somebody wants to hide their face to try to avoid government scrutiny, the government should not punish them.

While members of the public have a right to wear a mask when they protest, law enforcement officials should not wear a mask when they arrest protesters and others. An elementary principle of police accountability is to require uniformed officers to identify themselves to the public; this discourages officer misconduct, and facilitates accountability if an officer violates the law. This is one reason EFF has long supported the First Amendment right to record on-duty police, including ICE officers.

For these reasons, EFF believes it is wrong for state legislatures, and now federal law enforcement, to try to criminalize or punish mask wearing at protests. It is especially wrong, in moments like the present, where government it taking extreme measures to crack down on the civil liberties of protesters.