Criminal Justice Use of Facial Recognition Essay Sample

TO: Congressional Oversight Committee
FROM: Name
DATE:
SUBJECT: Criminal Justice Use of Facial Recognition
The advancement in technology has been one of the greatest achievements of mankind, yet it still creates worrisome situations. One of the technological advancements that have captured the attention of many is facial recognition technology (FRT). It is a technology that matches two or more facial images, based on a person’s facial features, to determine the identity of a person (Santamaria, 2020). FRT has many uses, including in law enforcement. While this technology presents law enforcement with an opportunity to identify suspects of criminal activity and prevent future crime, Mann and Smith (2017) indicate that it is invasive to privacy and may infringe civil liberties. Also, there are concerns about the accuracy of FRT in the identification of suspects as well as algorithmic bias (Singer & Metz, 2019). Thus, it is prudent that this committee places stringent measures to regulate the use of FRT in law enforcement and the criminal justice system in general.
Existing Legal Frameworks
The current legal frameworks are ambiguous when it comes to the use of FRT in the criminal justice system. No clear laws are governing or addressing some of the concerns related to the use of FRT by law enforcement in the federal government (New York City Bar, 2020). This raises concerns because the federal government has put in place a law regulating the use of FRT in the private sector, but not in the government sector. However, there have been several bills introduced by representatives and senators that touch on the use of FRT at the federal government level (New York City Bar, 2020). The first bill is the No Biometric Barriers to Housing Act, which was introduced in 2019 to prevent the use of facial recognition and other biometric technology in specific rental units. This was to control the use of FRT by law enforcement in federal public housing. The second bill is the Biometric Identification Transnational Migration Alert Program Authorization Act (BITMAP), also introduced in 2019. It encourages the use of FRT and other biometric technology to facilitate border security through the voluntary sharing of biometric data among foreign governments as well as US federal agencies. The law indicates that any data collected on US citizens should be deleted although the data may be stored for intelligence or security purposes (New York City Bar, 2020). The two federal laws discussed above, however, do not regulate the use of FRT. They only provide the where or the how, respectively, FRT can be used by law enforcement officers.
It is worth noting that currently, the Federal Bureau of Investigation (FBI), which is the primary federal law enforcement agency, has two programs dedicated to the use of FRT. The first program is referred to as the Next Generation Identification-Interstate Photo System (NGI-IPS) and the second is referred to as the Facial Analysis, Comparison, and Evaluation (FACE) (Finkleaet al., 2020). NGI-IPS facilitates facial recognition searches by authorized federal, state, and local law enforcement officers. However, there are guidelines in the use of NGI-IPS to ensure accurate identification of suspects. For instance, the FBI discourages reliance on the NGI-IPS to make a positive identification of a suspect. Law enforcement officers must manually assess the results and they cannot use the results as the only reason for making an arrest (Finkleaet al., 2020). Unlike NGI-IPS, FACE is only used by the FBI and other federal agencies for authorized investigations. The probe photo used in the FACE program is deleted after the officer is done. The FBI has guidelines that address some of the concerns related to the use of FRT, such as accuracy. The users of the program receive basic level training on how to compare, assess the quality of facial images, and how to make accurate conclusions (Finkleaet al., 2020). In using FRT, the FBI operates under the current legal frameworks of their mandate as provided by the Code of Federal Regulations as well as the US Patriot Act (Ruhrmann, 2019). It has used these two legal aspects as grounds for establishing and using the FRT programs.
* Assigning Liability
However, there are certain general federal laws that can guide and help assign liability in the use of FRT by law enforcement. For instance, the Privacy Act of 1974 regulates the collection, storage, distribution, and use of personal information maintained in the federal government’s system of records (Santamaria, 2020). Such personal information includes any information collected using FRT or other biometric technology. The act prevents disclosure of such information without written consent by the individual. Also, the E-Government Act of 2002 requires government agencies to assess the privacy impact of any technology that collects, stores or distributes personal information before the technology can be put into use (Santamaria, 2020). While these two laws do not directly regulate or address the issues of concern in FRT, they have been used to guide law enforcement officers on how to best use FRT without invading privacy or infringing certain civil liberties. Any officer who acts against the provision of the existing federal legislation concerning personal information and privacy can be held liable under these legal frameworks.
An individual has to prove that their rights were infringed by a law enforcement officer in the use of data collected through FRT for liability to be assigned to the officer. For instance, when FRT data is obtained through routine surveillance of a criminal suspect in public, it would be difficult to assign liability to the law enforcement officer. This is because what an individual shows to the public, knowingly, cannot be protected by the Fourth Amendment, as revealed in Katz v. United States (Santamaria, 2020). As such, the individual is liable for exposing their activities to the public and the government can legally collect such information, even using FRT. Also, physical characteristics that are usually seen in the public are not protected by the Fourth Amendment. However, if such information were to be obtained through means such as surveillance while at home, it would be considered trespass and a search under the Fourth Amendment. In such a case, the individual can argue that the use of FRT was unreasonable and an infringement of their Fourth Amendment right.
* Current Limits
Albeit a lack of a clear federal law on the use of FRT by law enforcement, there are limits to incentivizing positive outcomes. The first limit is the Fourth Amendment. Law enforcement officers have to tread lightly in the absence of current law on the use of FRT to avoid infringing the Fourth Amendment right. Under the Fourth Amendment, law enforcement officers are required to provide evidence that it is reasonable to search or arrest a person (Santamaria, 2020). Such a restriction can be considered a limiting factor in incentivizing a positive outcome, which in this case involves balancing between security and privacy. On one hand, if law enforcement officers feel like their hands are completely tied, they might not properly utilize FRT. On the other hand, if they feel like they have the leeway to use FRT as they wish, then there will be no telling how far they go. In either case, there will be no positive outcome. The second limit is the inaccurate matches that are sometimes produced by FRT. Inaccurate results are a result of human factors or technical issues (Finkleaet al., 2020). It would be difficult to assign accountability if the FRT results were inaccurate due to technical issues that are outside the officer’s control. In addition, when these errors are too many, law enforcement officers might not be incentivized to use FRT. There would be no positive outcomes if the results were inaccurate because a criminal would get away or an innocent...