Does facial recognition technology lead to wrongful arrests?

The use of facial recognition technology has become more widespread in law enforcement – in many cases, we don’t know when they are using it, what programs they are using, how it led to an arrest, or what other potential matches were ignored in a particular case, because law enforcement doesn’t tell the defendant or their attorney that the software was used…

What is facial recognition technology? Are police in SC using it to investigate crimes and make arrests? What are the benefits and the drawbacks of the use of this type of technology by law enforcement?

What is Facial Recognition Technology?

In recent years, the use of facial recognition software has gone mainstream, and it is used by law enforcement agencies – local, state, and federal – across the country.

Police who have access to the technology can take a photograph – taken themselves or received from alleged victims or witnesses – and compare it to the millions of photographs found in government databases like mugshots or driver’s license photos.

How does it work?

• Police get a photograph of a suspect from a witness or from a surveillance video;
• They upload that image into the facial recognition software;
• The software then gives the user a list of potential matches that are ranked by their similarity to the original photograph;
• The user identifies the photo or photos they believe is a match; and
• Law enforcement makes an arrest – hopefully after confirming the identification through additional investigation and with probable cause independent of the facial recognition software.

I can see why law enforcement wants to use this new tool and how useful it could be. Are all police departments using it now?

How Widespread is Law Enforcement Use of Facial Recognition Technology?

Who uses facial recognition technology?

The FBI, ICE, and other federal agencies have access to facial recognition technology. State and local law enforcement agencies across the country are also using facial recognition software to solve crimes. How many?

It’s difficult to say because many law enforcement agencies refuse to talk about it or release information on their facial recognition programs – in many cases, they decline to tell defendants when the software was used in their cases, and they do not inform defense attorneys despite the obvious constitutional implications under Brady v. Maryland.

According to the Georgetown Center on Privacy and Technology:

• One in two Americans’ photos are in a law enforcement facial recognition network, and are searched on a regular basis;
• One in four law enforcement agencies in the US has access to facial recognition software;
• The use of facial recognition technology is unregulated;
• Most law enforcement agencies do not test their systems for accuracy and they are not audited for misuse;
• Facial recognition is the least accurate for African Americans – the group that it is also most likely to affect;
• Only one police department (the Ohio Bureau of Criminal Investigation) has a policy in place that prevents officers from using the technology to track people based on their political affiliation, religious affiliation, or protected speech; and
• Police departments across the country are withholding information on these programs and, in many cases, denying open records requests or discovery requests in criminal cases.

Do Police in SC Use Facial Recognition Technology?

Police in SC use facial recognition software, although defendants and their attorneys are not always aware that the technology was used in their case…

In one example that made the news, a carjacking suspect in Greenville County was identified using facial recognition software before being charged with kidnapping, criminal conspiracy, attempted robbery, conspiracy to commit kidnapping, and possession of a weapon during a violent crime.

South Carolina allows the FBI and possibly other federal agencies to access the state’s driver’s license photos and mugshots for use with facial recognition software, and several local agencies have partnered with Ring – Amazon’s doorbell surveillance/ home security camera company, including:

• Mount Pleasant Police Department,
• Horry County Police Department, and
• Myrtle Beach Police Department.

These police departments “can request footage and interact with residents through the company’s Neighbors app,” giving the police networks of surveillance coverage throughout their city in neighborhoods wherever the residents have Ring cameras installed.

Other police departments, including the Charleston and North Charleston Police Departments, are asking residents to register their Ring cameras with the police department. Then, when a crime occurs in a neighborhood where there are cameras registered, police can receive surveillance footage directly from the camera’s owners, which they could then use with facial recognition software to identify suspects.

What’s Wrong with It?

This sounds like incredibly useful technology, and it is. It’s also subject to misuse, misidentifications, and even racial bias unless there are quality controls, oversight, and regulations for how the software is used.

What are the problems with law enforcement’s use of facial recognition software?

• It’s inaccurate – in most cases, law enforcement must sift through many possible identifications before deciding one or more look close to their suspect, and, if they do not follow through with an investigation that provides solid evidence, they will make wrongful arrests.
• If I am one of the hundreds of millions of people whose photo is being searched with this software every day, how does that not violate my Fourth Amendment right to be free from unreasonable searches? My right to privacy? Police do not, as far as I can tell, get a search warrant before using the software.
• It’s biased – the software misidentifies people of color, women, and children at much higher rates. Until the software is improved and the systemic bias against non-white people is corrected, it only magnifies the systemic racism that already defines our justice system.
• It is not secure – like many of our government systems, the databases used to store our photographs are subject to hacking by criminals bent on identity theft or state-sponsored hackers (Russia, China, North Korea, for example).
• There are currently no protections against misuse by our own government – “[p]olice officers across the country misuse confidential law enforcement databases to get information on romantic partners, business associates, neighbors, journalists, and others for reasons that have nothing to do with daily police work.”
• There are no protections against unconstitutional abuses of power – government officials can use the software to identify and track people based on their religious or political affiliations, or to track lawful protesters.

Should we continue to develop and use facial recognition software? It’s going to happen, whether we like it or not. We need to ban the use of facial recognition technology in law enforcement, however, until legislation is passed that regulates the accuracy of the software and its permissible uses.

Charleston, SC Criminal Defense Attorney

Charleston, SC criminal defense attorney Grant B. Smaldone represents people charged with crimes in SC state and federal courts.

If you have been charged with a crime or believe that you are under investigation in the Charleston, Georgetown, or Myrtle Beach areas of SC, call now at (843) 808-2100 or send an email to schedule a free consultation.