- The Washington Times
Sunday, August 11, 2019

Legal scholars say police departments considering the use of facial recognition tools should think twice given Supreme Court rulings curtailing warrantless tracking with high-tech machinery.

The high court ruled in 2012 that law enforcement officials violated the Fourth Amendment by placing a GPS tracking device on a man’s car to surveil him around the clock. The justices in 2017 extended the constitutional protection to cellphone data, which police had been using to track a suspect and link him to a string of robberies.

Civil liberties advocates now are sounding the alarm over facial recognition technologies. They say some police departments, specifically in Detroit, have cameras with capabilities to identify people by their faces in real time as they pass by businesses in the community.

“This kind of a generalized surveillance, watching someone over time … creates the same kind of privacy harm,” said Andrew Ferguson, a law professor at the University of the District of Columbia.

Law enforcement can also reportedly use the facial recognition software to match suspects to mug shots and driver’s license photographs, though Mr. Ferguson said it’s more of a stretch to claim a Fourth Amendment violation with respect to photographs that city officials possess lawfully.

Still, civil liberties groups have united to pressure the Detroit Board of Police Commissioners to forbid the use of facial recognition technology in any form. They say it is increasingly inaccurate when used on minorities and can lead to false arrests.

The city’s police department proposed last month using the software to identify people through only still images from crime scenes and not using live video surveillance.

Detroit Mayor Mike Duggan, a Democrat, issued a statement saying the cameras recently purchased don’t have facial recognition technology and dismissed concerns as “confusion.”

“Police never make an arrest just because there is a facial recognition match. But it is an important source of leads detectives can use to find the identity of the offender. I fully support the technology’s use for that limited purpose,” the mayor said in a statement.

Phil Mayor, a senior staff attorney with the American Civil Liberties Union of Michigan, said he is doubtful of the city’s claim that its cameras don’t have facial recognition technology.

He noted that Detroit spent $1 million on its contract with a tech company that provides facial recognition capabilities.

“It seems to me the city is trying to split hairs,” he told The Washington Times.

Jane Bambauer, a law professor at the University of Arizona, said some facial recognition programs have not been “trained” using sufficient libraries of minority faces, making the software less accurate for blacks, though she noted that this flaw can be fixed.

“I suspect the error rate is destined to drop over time and eventually will prove to be more accurate than the more traditional modes of identifying thieves and other criminals,” she told The Times.

“So if we ignore the anxiety related to replacing human systems with technology, the technology could actually improve matters by reducing false arrests,” she said.

Law enforcement officials aren’t the only entities facing backlash for using facial recognition. Facebook and Apple are among companies caught up in lawsuits over the technology.

A college student in New York sued Apple in federal court this year after he was wrongly arrested in connection with a series of robberies at Apple stores in the Northeast.

Store security claimed Ousmane Bah was the perpetrator, but when police arrested Mr. Bah and compared his appearance to the surveillance video, the detective determined that the perpetrator looked nothing like Mr. Bah.

The lawsuit is pending in federal court in New York, where Mr. Bah is seeking $1 billion for emotional distress from the false arrest.

Neither Apple nor Mr. Bah’s attorney responded to a request for comment.

Facebook has been sued by a group of residents in Illinois who claim the company uses facial recognition technology to identify users in digital images without consent or notice.

The 9th U.S. Circuit Court of Appeals ruled this month that the lawsuit may proceed as a class action and suggested that the facial recognition technology, used without consent, “invades an individual’s private affairs and concrete interests.”

The decision marks the first time a federal appeals court has delved into privacy issues related to facial recognition technology, according to the American Civil Liberties Union.

The court’s 24-page decision upheld a district court’s decision to certify a class action against Facebook alleging violation of an Illinois state law that prevents companies from collecting an individual’s biometric data without permission.

Mr. Ferguson said few states have laws like the one in Illinois, but lawmakers might follow up and enact legislation to give people rights to photos and images used for monetization.

“A lot of times the sort of understandings of what is public, what is private, what you might be able to retain a claim to privacy on, are just not well settled,” he said.

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