NPR has a story about how Rekognition, Amazon’s facial recognition technology, misidentified 28 members of Congress as criminals when the ACLU tested their program.

People expect facial recognition technology to be perfect, or close to it – like eyewitness identifications, right? Except, many people still do not realize how imperfect human eyewitness identifications are…

Is Amazon’s facial recognition technology accurate enough to be admissible in court? How does it compare to good old-fashioned eyewitness identifications?

Rekognition – How Useful Is It?

The NPR story details how the ACLU tested Amazon’s claim that their product “provides extremely accurate facial analysis through photos and video” by using the software to scan photos of every member of the US House and Senate and asking it to compare the photos to a database of mugshots.

Apparently, the results were less than optimal – 28 of the Congress members’ photos, which included Republicans and Democrats, males and females, and people of all ages, were misidentified as matches with individuals in the mugshot database.

Is the AI Racially Biased?

39 percent of non-white congress members were misidentified (they make up 20 percent of Congress), demonstrating that cross-racial identifications may be a problem for AI as well as for humans…

The Software May Be More Effective than the ACLU’s Test Revealed

Amazon complained that the ACLU had set the “confidence level” of the software at 80%, and that, for law enforcement, the confidence level should be set at 95 percent or higher. The ACLU responded by pointing out that Amazon does not ask users what they are using the software for and apparently does not provide guidance as to where the confidence level should be set.

Despite the discrepancy, an ACLU attorney noted:

“Face surveillance technology in the hands of government is primed for abuse and raises grave civil rights concerns.”

Will it Be Admissible in Court?

If Amazon can demonstrate that their product is accurate when set to the proper confidence level, it will most likely be admissible in courts.

But, does it need to be admissible in court?

If it’s used only to track suspects or to make an initial identification of a suspect, what is the remedy if there is other evidence to prosecute a person once they have been identified? Is it a Fourth Amendment violation to use software like Rekognition on publicly available photographs like mugshots and photos pulled from publicly accessible social media accounts?

I predict that the software will become mainstream, and, after some initial court challenges, we will be seeing more of Rekognition and similar programs in criminal cases nationwide.

Is Rekognition More Accurate Than Eyewitness Identifications?

It’s counter-intuitive, but eyewitness identifications are not that reliable – for many reasons that are now well-documented, our memories are just not as reliable as we think they are.

Cross-racial identifications are particularly problematic for eyewitnesses (and for Rekognition, apparently). Problems with suggestive line-up procedures and police departments who refuse to implement “best practices” for identification procedures result in eyewitness identifications, sometimes by witnesses who are “certain,” that are wrong.

According to the Innocence Project, eyewitness misidentifications played a role in more than 70 percent of wrongful convictions that were overturned based on DNA evidence…

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