Of Masks and Men: Protecting Freedom of Assembly During an Era of Mass Surveillance

Jason Buhi (Barry University), Dhillon Ramkhelawan (Independent), Of Masks and Men: Protecting Freedom of Assembly During an Era of Mass Surveillance, SSRN (2021):

Clocks are striking thirteen around the world, as 1984 arrives only modestly delayed. Surveillance cameras, facial recognition, social media, big data, acoustic footprints and even DNA databases are allowing governments to impose ever more ubiquitous and stricter surveillance of individuals and civil society organizations. As a result, masks have become more common at assemblies, processions, and demonstrations. This has not gone unnoticed by authoritarian governments, giving rise to a global wave of anti-mask legislation. With the advent of the dystopian surveillance state such laws constitute a threat to various fundamental rights, including speech, petition, assembly, and privacy. Nevertheless, roughly one-third of the United States currently possess anti mask legislation. While about half of those laws punish mask-wearing only during the commission of a crime, the rest are overbroad because they serve to thwart any form of anonymous political assembly. The U.S. Supreme Court has thus far denied certiorari on this issue, leaving the constitutionality of mask bans up to the states. The authors of this paper acknowledge the difficult historic reasons for several mask bans, where cowards have hidden their faces to engage in vandalism and violence. Still, in light of the new surveillance state, the use of anti-mask legislation by authoritarian regimes, and the many fundamental rights at stake, the United States must commit to protecting the anonymity of orderly demonstrators during peaceable assemblies. This article surveys the existing mask laws of the several states, analyzes the related jurisprudence and – recognizing the imminent new era of mass surveillance facing us all – argues for the narrow-tailoring of anti-mask laws to balance law enforcement concerns against the myriad individual rights at stake.