For years I have been a victim of racist cameras– from Olan Mills through the 90s, to every identification card received in the 00s. If you are not prone to sunburn, you have probably appeared as a black wraith-like figure in every class photo taken since pre-K. I draw your attention to Exhibit A: I did not take my photo on a different day, so why is my background lighter blue? The portrait company apparently brightened my picture (and the photos of other black students) so my features could be distinguished. In the succeeding decades, the ability of cameras to capture my radiance has moderately improved, but not much.
When arriving to the United States via Dulles International Airport, kiosks are used to scan faces and passports before entry. I always require a live body to confirm my identity because I am never recognized by the facial recognition software. The same technology that is unable to identify a person standing still in front of its sensors, is trusted by law enforcement to accurately identify targets of criminal investigations. The high stakes of its use necessitate accuracy. Surely, facial recognition technology used by law enforcement is federally regulated due to the Fourth Amendment which safeguards “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches.” Since this is BS, you know that is not true.
According to a 2016 report issued by the Center on Privacy and Technology at Georgetown University Law Center, over 117 million American adults are part of at least one facial recognition database. Facial recognition technology is used to compare suspects of crimes with photographs from state issued IDs. Many states have also begun to create their own facial recognition programs at the state and local levels. The use of these databases is virtually unregulated. In many instances, police search databases that consist of mug shots and driver’s license photos. Unlike fingerprint or DNA records, this system includes law-abiding citizens. Most states have not passed any laws to regulate the use of facial recognition technology by law enforcement, and Georgetown’s report is unaware of any agencies that require warrants to conduct searches.[1] Legislative oversight is necessary to protect Fourth Amendment guarantees against unreasonable searches. Driver’s license photos and pictures scraped from social media must be removed from databases to ensure that the legal standard of reasonable suspicion is met before a search is conducted.
The U.S. Government Accountability Office (GAO) released a report at the end of August 2021 that found ten federal agencies– the departments of Agriculture, Commerce, Defense, Homeland Security, Health and Human Services, Interior, Justice, State, Treasury and Veterans Affairs– intend to expand facial recognition operations by 2023. Ten agencies said they were interested in improving the technology to recognize people in masks, and the State Department has researched aging software to access childrens’ passport photos.[2]
The GAO reports that the Justice Department, the Air Force, and Immigration and Customs Enforcement have used Clearview AI, a facial recognition company that built a database of more than 3 billion images collected from social media. The pictures were gathered without consent, and the company sells its services to law enforcement.[3] In March 2021, Clearview AI was sued by the American Civil Liberties Union (ACLU).[4] The company is also facing legal challenges from Google and Facebook because it copied images from their databases without permission.[5]
Facial recognition technology has assisted in the apprehension of violent criminals. Some argue that law enforcement should use all available tools, including images of citizens without criminal histories. The FBI stated that the technology offers invaluable leads, but does not identify individuals for arrest.[6] Despite this claim, there are instances where facial recognition technology resulted in the arrest of innocent people. In April 2021, Robert Williams sued Detroit police for his wrongful arrest after facial recognition software incorrectly identified him as a shoplifter. Research shows that facial recognition technology often misidentifies people of color, and Williams is at least the third case brought by a black man against law enforcement.[7]
In 2019, San Francisco banned the adoption of facial recognition technology. In 2020, New York imposed a two-year moratorium after one district adopted facial recognition technology for security procedures. In 2021, Virginia lawmakers passed a ban on the use or purchase of the technology by local law enforcement and campus police without permission from the state legislature.[8] Massachusetts and Maine also adopted measure to restrict use by law enforcement.[9] In May 2021, Amazon stopped selling its facial recognition technology to law enforcement due to a lack of federal regulation.[10] Presently there are no federal restrictions on its use by law enforcement.
In Maryland v. King, the defendant’s DNA was collected during booking and entered into a database that implicated him in an unsolved rape. The Court found that because the defendant was already in police custody and arrested under probable cause, the search occurred under a reasonableness– not an individualized suspicion– standard.[11] Fingerprint and DNA databases used by law enforcement predominately consist of samples collected from individuals during their booking procedure. The court in King argued that the collection of DNA was justified because it was part of a routine procedure. Furthermore, arrested individuals have a reduced expectation of privacy.[12] Photographs used for state issued IDs; however, are not obtained during a criminal procedure and should not be included in law enforcement searches. The subjects do not have a reduced privacy interest.
According to the American Civil Liberties Union and the Leadership Conference on Civil and Human Rights, “face recognition technology is rapidly being interconnected with everyday police activities, impacting virtually every jurisdiction in America. Yet, the safeguards to ensure this technology is used fairly and responsibly, appear to be virtually nonexistent.”[13] If law enforcement uses facial recognition software, it should only include mug shots, which are analogous to DNA and fingerprint collection. The inclusion of other photos erodes Fourth Amendment protections against unreasonable searches.
The clickbait blurb was not overly hyperbolic. One is not likely treated as a suspect in every instance when an unidentified individual commits a crime; only when one shares a resemblance. I personally hope Dementors do not break any laws because the black smudge that is my driver’s license photo offers no security that I will not be falsely implicated.
BS
[1] Clare Garvie, Alvaro Bedoya & Jonathan Frankle, The Perpetual Lineup, Unregulated Police Face Recognition in America, Georgetown Law Center on Privacy and Technology (October 18, 2016).
[2] https://www.washingtonpost.com/
technology/2021/08/25/federal-facial-
recognition-expansion/
[3] Id.
[4] https://www.pbs.org/newshour/nation/
states-push-back-against-use-of-facial-recognition-by-police
[5] https://www.washingtonpost.com/
technology/2021/08/25/federal-facial-
recognition-expansion/
[6] Craig Timberg, “Racial profiling, by a computer? Police facial-ID tech raises civil rights concerns.” Washington Post. October 18, 2016.
[7] https://www.washingtonpost.com
/technology/2021/04/13/facial-recognition
-false-arrest-lawsuit/
[8] https://www.pbs.org/newshour/nation/
states-push-back-against-use
-of-facial-recognition-by-police
[9] https://www.washingtonpost.com/
technology/2021/08/25/federal-facial
-recognition-expansion/
[10] https://www.washingtonpost.com/
technology/2021/08/25/federal-facial-
recognition-expansion/
[11] Maryland v. King, 569 U.S. _ (2013).
[12] Id.
[13] Id.
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