Facial recognition software raises issue of privacy rights in criminal process, P.3

In recent posts, we’ve been looking at the topic of facial recognition software as used by law enforcement agencies, particularly privacy concerns related to use of the technology. These concerns were voiced quite clearly in a recent report by a think tank out of Georgetown University.

A particular focus of the study was how facial recognition software in law enforcement disproportionately impacts African American criminal suspects. This is because African Americans disproportionately interact with law enforcement and are likely overrepresented in the photo databases law enforcement uses to run their searches.

There is also the issue of accuracy—it has never been determined how accurate the technology is, particularly when matching images of African American people. Granted, facial recognition software is only a tool used in law enforcement, and does not meet the standard for evidence. Still, because the software could end up pulling individuals into the criminal process on a questionable basis, there is a need to curb or limit its use, it is argued.

The report made several legislative recommendations on this front. First of all, it recommended limiting database searches to police photographs, unless officers have a warrant to search other databases, such as driver’s licenses and photo IDs. The report also recommended requiring elimination of innocent people from database searches, to the extent possible, and explicitly prohibiting tracking individuals on the basis of racial, ethnic, political or religious beliefs.

Whether these recommendations will be championed by lawmakers at the federal or state level is as open to question at this point. As we’ve noted, some states do already limit the use of the technology in law enforcement, while others prohibit it altogether.

In all of this, the concern is to ensure that law enforcement doesn’t infringe the privacy rights of criminal suspects and that searches are always conducted reasonably. This, of course, is an important issue to explore in any criminal case with the help of an experienced advocate.