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The Law Blogger is a law-related blog that informs and discusses current matters of legal interest to readers of The Oakland Press and to consumers of legal services in the community. We hope readers will  find it entertaining but also informative. The Law Blogger does not, however, impart legal advice, as only attorneys are licensed to provide legal counsel.
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Sunday, September 15, 2019

Facial Recognition and Your Privacy


Lots of Cameras; Lots of Data

In China, they say the "authorities" can identify anyone, in any public place, in seconds. With a population of nearly 1.4 billion, that kind of state power is scary.  Can the United States be that far behind?

This real-time identification is the latest technological rage; brought to us by a high-tech process known as facial recognition. Like the geofence warrants profiled in our last post, facial recognition is getting lots of love from law enforcement as a highly-effective investigative tool to solve crimes.

Real-time facial recognition technology allows authorities to match any face, captured on a number of networked cameras, with an extensive and growing database. This is accomplished, by the way, in complete secrecy.

But what happens to our privacy when law enforcement can track all of our moves? Our privacy erodes to the point of extinction, that's what happens.

Detroit Police Department's Real-Time Facial Recognition Software

Here in Michigan, the Detroit Board of Police Commissioners has been attempting to articulate a facial recognition policy. Whether the Detroit Police Department is allowed to implement facial recognition in real-time; and whether such implementation will result in racial injustice for African-Americans are two of the hot-button issues surrounding the recently-acquired facial recognition software.

The DPD, with City Council approval, purchased the million dollar facial recognition software in January 2017. As soon as it was installed on the DPD's network, the scope of the software's implementation was the subject of a heated and protracted policy debate.

Police Chief James Craig, along with Detroit Mayor Mike Duggan, favor implementation of the software with certain safeguards. Chief Craig says that no one will be the subject of criminal charges based solely on facial recognition; that the software would not be used for real-time identification; and that officers transgressing these limits would be subject to disciplinary and possibly criminal sanctions.

As the Law Blogger was uploading this post, the Board of Police Commissioners approved the Chief's request for expanded use of facial recognition in a 8-3 vote. Now the expanded-use policy goes to the Detroit City Council for a ratification vote. With a top-ten big city murder rate, and enough unsolved case files to fill a good sized library, it is understandable why city leaders want broad implementation of the software.

In Detroit, ubiquitous security cameras, standard for most retail businesses, provide an excellent image feed for comparison to the DPD's photo database. The so-called "green light partnership" requires participating businesses in Detroit to maintain a minimum standard of lighting on their premises, and also requires installation of high-definition security cameras that feed directly into the DPD's computer network.

Most of the current green light partners are gas stations and liquor stores; high-profile crime targets. Soon, however, green light partners will include schools, churches and health care facilities. News stories about DPD's software also mention the potential for ubiquitous traffic cameras to be patched into the facial recognition software.

Obvious targets here in Detroit are the legion of repeat offenders whose images currently reside in the DPD's database. The database against which images are compared can easily be expanded from the basic mug-shot collection, to include social media images, Secretary of State images, and other government-maintained digital photo databases. And yes, there is a mobile-device-version of the software.

Biometric Privacy Rights

The DPD's implementation of facial recognition, and the similar -suspected- use of this technology by the Chicago Police Department, precipitated a review and assessment recently published by the Georgetown Law's Center on Privacy and Technology. Pilot face recognition programs are rolling-out in New York, Washington D.C. and Orlando.

Across the board, law enforcement officials issue assurances that the facial recognition software they are considering will not be used to monitor random citizens, immigrants, activists or people of color. Yet once implemented, the potential for serious Orwellian privacy invasion is certainly operational.

The Detroit chapter of the ACLU, of course, has been vocal in opposition to any adoption and use of facial recognition software, mostly on the basis such software has great potential to discriminate against people of color. Critics of the software claim it misidentifies people of color in a high percentage of cases. Perhaps for this reason, the City of San Francisco has banned all state use of this technology.

State Legislation

Here in Michigan, state legislators have introduced a bill prohibiting law enforcement from using any evidence obtained from facial recognition technology to enforce state law. The bill expressly calls for the exclusion of evidence so obtained as an express violation of the Fourth Amendment to the United States Constitution and section 11 of article 1 of Michigan's constitution.

This bill, of course, represents the other end of the spectrum. Placing an absolute bar to law enforcement's use of facial recognition technology will not likely pass any legislature, regardless of the political climate; such a bright-line bar is simply too restrictive.

A strong public interest exists in the privacy of our biometric data. One problem with facial recognition is that there is no way to "opt-out".

Illinois passed the nation's first biometric privacy legislation back in 2008. The Biometric Information Privacy Act proscribes the collection, use and dissemination of a citizen's biometric data without consent. This act, however, does not apply to state actors; only commercial entities.

Constitutional Concerns

Freedom of assembly under the First Amendment, and the Fourth Amendment's requirement that seizures be based on probable cause are fundamental rights. To the extent that collecting and transmitting our biometric data constitutes a seizure, minimum constitutional standards are sure to be developed.

Surprisingly, the Roberts Court is turning a studied eye toward not only selecting, but properly deciding some very interesting privacy cases. Last August, we blogged about the most recent such case: Carpenter v United States.

Carpenter was summarized in our post:
Tim Carpenter was convicted in the United States District Court for the Eastern District of Michigan for a series of armed robberies in Detroit and across Northern Ohio. The FBI used Carpenter's archived cell phone call location records to track his nearly every move over a long period of time.
Conservative critics of the decision feared that long-trusted law enforcement techniques may be compromised by a search warrant requirement. On the other hand, privacy advocates hailed the 5-4 ruling as a victory for our diminishing rights to digital privacy.
The issue presented in the case is whether law enforcement was required to first obtain a warrant from a neutral magistrate or judge prior to securing cell phone location data. In Carpenter, the data was so extensive, it was used to create a detailed map of the defendant's movements. This map was a powerful evidentiary component which led to the Defendant's conviction.
Although prior SCOTUS rulings have held that motorists do not have a reasonable expectation of privacy as to their driving movements, Justice Roberts held that people do not expect that the police are tracking their every move over a long period of time. The decision focused on the qualitative sea-change in digital data and its availability at the expense of basic privacy.
In the 5-4 opinion that granted Carpenter a new criminal trial, Justice Roberts declared that we do not waive our Fourth Amendment protections simply by taking a step outside of our homes. SCOTUS held that secretly monitoring and cataloging every single move across an appreciable span of time violated Carpenter's Fourth Amendment rights.

Given the growing list of U. S. cities bidding on facial recognition software, and considering the increasingly high-tech methods of data collection [i.e. geofence warrants, police drones, facial recognition] a case will come along soon that is ripe for a petition for certiorari before the SCOTUS.

Until then, our privacy rights continue to erode. Where we go, when we go there, and with whom, are now as much a part of our digital profile as our key-strokes on Internet-connected devices. Should the state have unfettered access to our profiles?

We Can Help

If you or a family member have been the subject of a warrant or criminal charge, based in whole or in part, on facial recognition technology, or on a geofence warrant, contact our law firm to have your options assessed.

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