In today’s world of constant surveillance, people protesting should have the right to wear a mask
By Jay Stanley
Arcane laws banning people from wearing masks in public are now being used to target people who wear face coverings while peacefully protesting Israel’s war in Gaza. That’s a big problem.
In the 1940s and 50s, many U.S. states passed anti-mask laws as a response to the Ku Klux Klan, whose members often hid their identities as they terrorized their victims. These laws were not enacted to protect those victims, but because political leaders wanted to defend segregation as part of a “modern South” and felt that the Klan’s violent racism was making them look bad.
Now these laws are being used across the country to try and clamp down on disfavored groups and movements, raising questions about selective prosecution. Just this month, Ohio Attorney General Dave Yost sent a letter to the state’s 14 public universities alerting them that protesters could be charged with a felony under the state’s little-used anti-mask law, which carries penalties of between six to 18 months in prison. An Ohio legal expert, Rob Barnhart, observed that he’d never heard of the state’s law being applied 
previously, even to bank robbers wearing masks. While Yost framed his letter as “proactive guidance,” Barnhart countered that “I find it really hard to believe that this is some public service announcement to students to be aware of a 70-year-old law that nobody uses.”
Ohio officials aren’t the only ones who seem to be selectively enforcing anti-mask laws against student protestors. Administrators at the University of North Carolina have warned protesters that wearing masks violates the state’s anti-mask law and “runs counter to our campus norms and is a violation of UNC policy.” Students arrested during a protest at the University of Florida were charged with, among other things, wearing masks in public. At the University of Texas at Austin, Gov. Greg Abbott and university officials called in state troopers to violently break up pro-Palestinian protests after the school rescinded permission for a rally on the grounds that protesters had a “declared intent to violate our policies and rules.” One of the rules the administrators cited was a university ban on wearing face masks “to obstruct law enforcement.”
At a time when both public and private actors are increasingly turning to invasive surveillance technologies to identify protesters, mask-wearing is an important way for us to safeguard our right to speak out on issues of public concern. While the ACLU has raised concerns about how anti-mask laws have been wielded for decades, we are especially worried about the risk they pose to our constitutional freedoms in the digital age.
In particular, the emergence of face recognition technology has changed what it means to appear in public. Increasingly omnipresent cameras and corrosive technology products such as Clearview AI allow police to easily identify people. So, too, can private parties. The push to normalize face recognition by security agencies threatens to turn our faces into the functional equivalent of license plates. Anti-mask laws are in effect a requirement to display those “plates” anytime one is in public. Humans are not cars.
Of course, mask-wearing is not just about privacy — it can also be an expressive act, a religious practice, a political statement, or a public-health measure. The ACLU has chronicled the mask-wearing debate for years. As recently as 2019, anti-mask laws were used against Occupy Wall Street protesters, anti-racism protesters, and police violence protesters. The coronavirus temporarily scrambled the mask-wearing debate and made a mask both a protective and a political act.
Today, one question that remains is whether and how the authorities distinguish between those who are wearing a mask to protect their identities and those who are wearing one to protect themselves against disease. That ambiguity opens up even more space for discretionary and selective enforcement. In North Carolina, the state Senate is currently considering an anti-protest bill that would remove the exception for wearing a mask for health purposes altogether, and would add a sentencing enhancement for committing a crime while wearing a mask.
For those speaking out in support of the Palestinian people, being recognized in a crowd can have extreme consequences for their personal and professional security. During the Gaza protests, pro-Israel activists and organizations have posted the faces and personal information of pro-Palestine activists to intimidate them, get them fired, or otherwise shame them for their views. These doxing attempts have intensified, with viral videos showing counterprotesters demanding that pro-Palestinian protesters remove their masks at rallies. Professionally, employers have terminated workers for their comments about Israel and Palestine, and CEOs have demanded universities give them the names of protesters in order to blacklist them from jobs.
While wearing a mask can make it harder to identify a person, it’s important for protesters to know that it’s not always effective. Masks haven’t stopped the Chinese government or Google, for example, from identifying protesters and taking action against them. Technologies that can be used to identify masked protesters range from Bluetooth and WiFi signals, to historical cell phone location data, to constitutionally dubious devices called IMSI Catchers, which pretend to be a cell tower and ping nearby phones, prompting phones to reply with an identifying ping of their own. We may also see the development of video analytics technologies that use gait recognition or body-proportion measurements. During Covid, face recognition also got much better at identifying people wearing partial face masks.
Protecting people’s freedom to wear masks can have consequences. It can make it harder to identify people who commit crimes, whether they are bank robbers, muggers, or the members of the “violent mob” that attacked a peaceful protest encampment at UCLA. Like all freedoms, the freedom to wear a mask can be abused. But that does not justify taking that freedom away from those protesting peacefully, especially in today’s surveillance environment.
Anti-mask laws, undoubtedly, have a significant chilling effect on some protesters’ willingness to show up for causes they believe in. The bravery of those who do show up to support a highly-controversial cause in the current surveillance landscape is admirable, but Americans shouldn’t have to be brave to exercise their right to protest. Until privacy protections catch up with technology, officials and policymakers should do all they can to make it possible for less-brave people to show up and protest. That includes refusing to use anti-mask laws to target peaceful protestors.
Jay Stanley, Senior Policy Analyst, ACLU Speech, Privacy, and Technology Project
