Facial ID Technology: Novel Challenges for Defense Bar

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By Lance J. Rogers

Nov. 7 — Chances are pretty good these days that your picture, mined from a driver’s license database or even plucked from Facebook pages and other online social media, is on file somewhere and the police are using facial recognition technology to compare those photos with surveillance footage.

What are the options if you, or your client, gets picked up in one of these digital dragnets?

A lawyer who specializes in digital privacy issues and a former federal prosecutor explored some of the possibilities with Bloomberg BNA, suggesting that defense lawyers will want to challenge the science of the match and even argue that citizens don’t surrender their right to privacy just because technology allows more intrusions than ever before.

‘Booming Industry’ for Experts

The government will certainly argue that there’s no Fourth Amendment issue here because you expose your face in public every day and there’s nothing wrong with comparing video of a bank robber’s face to a database of driver’s license photos, says Stephanie Lacambra, a staff attorney with the San Francisco-based Electronic Frontier Foundation.

“But defense lawyers still will want to attack how those surveillance cameras are being serviced, whether they were working correctly and also challenge the reliability of the facial recognition software being used,” Lacambra told Bloomberg BNA.

Laurie L. Levenson, a former federal prosecutor who now teaches criminal procedure at Loyola Law School in Los Angeles, predicts that facial recognition technology will trigger “a booming industry for expert witnesses.”

“Prosecution experts will testify that the technology is reliable and has been vetted by people who know about these things, and defense experts will say ‘not so fast, it’s not as reliable as you think,’ and will focus on error rates and the like,” Levenson told Bloomberg BNA.

Ultimately, it will fall to judges to learn about the new technology and perform their traditional gatekeeping role, Levenson said.

Lacambra agreed, saying “it definitely will be a matter of first impression for a lot of judges because these cases haven’t been moving through the courts.”

That’s not to say that the development comes as a big surprise. “We’ve known this was coming for some time now,” Levenson said.

At first facial recognition was sold as a new tool in the fight against terrorism to be used at airports and borders.

But Levenson said she suspected all along it wouldn’t be restricted to the search for Osama bin Laden and his confederates.

“Police cars are routinely scanning license plates. I suppose the next step is for them to scan everybody’s face and store the image somewhere,” Levenson added.

‘Virtual, Perpetual Line-Up.’

The images of more than 117 million adult Americans are stored in some type of law enforcement facial recognition network, according to a new report released Oct. 18 by Georgetown University’s Center on Privacy & Technology.

But the problem is that facial recognition systems are largely unregulated and rely heavily on driver’s license databases, which means that many law-abiding Americans “are now part of a virtual, perpetual line-up,” the report says.

The report, titled The Perpetual Line-Up: Unregulated Police Face Recognition in America, recommends stricter regulations, greater transparency by law enforcement agencies and internal audits to prevent misuse. It includes a Model Police Face Recognition Use Policy that lists the following recommendations:

  •  Recognition searches should be conditioned on individualized suspicion of criminal activity;
  •  Mug shot databases should be purged when charges are dropped;
  •  Driver’s license and ID photo databanks should only be searched upon a showing of probable cause; and
  •  Facial recognition systems should be periodically tested for accuracy, and those results should be made public.

“The idea that federal and local agencies are creating biometric databases of law-abiding citizens is just creepy,” Levenson said.

“But constitutionally, I don’t really know that there’s much defense lawyers can do because this is your face and people can see it in public,” she said.

“I don’t know that there’s anything in the Fourth Amendment that bars Big Brother from linking it to the massive amount of information it has,” she added.

Privacy?

“I can see a defense lawyer taking the position that these dragnet searches are basically the same as a forbidden general warrant,” Lacambra told Bloomberg BNA.

She also suggested that the heightened intrusion takes this out of the traditional “plain view” analysis, which says that anything you knowingly expose to the public is fair game for the police.

“If you were being followed by a police officer 24/7 you’d feel like your privacy was being violated,” she said. “Just because it’s being done by technological means doesn’t make it any less invasive.”

Levenson said it would’ve been interesting to hear the late Justice Antonin Scalia weigh in on this issue.

“Going all the way back to the thermal imaging cases, he was the justice who was most skeptical of new technology and the way it was being used to invade citizens’ privacy.”

To contact the reporter on this story: Lance J. Rogers in Washington at LRogers@bna.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bna.com

For More Information

The Georgetown University report on facial recognition is available at https://www.perpetuallineup.org/.

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