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THE PERPETUAL LINE-UP UNREGULATED POLICE FACE RECOGNITION IN AMERICA www.perpetuallineup.org OCTOBER 18, 2016 THE PERPETUAL LINE-UP UNREGULATED POLICE FACE RECOGNITION IN AMERICA Clare Garvie, Associate Alvaro M. Bedoya, Executive Director Jonathan Frankle, Staff Technologist RESEARCH Moriah Daugherty, Research Assistant Katie Evans, Associate Edward J. George, Chief Research Assistant Sabrina McCubbin, Research Assistant Harrison Rudolph, Law Fellow Ilana Ullman, Google Policy Fellow Sara Ainsworth, Research Assistant David Houck, Research Assistant Megan Iorio, Research Assistant Matthew Kahn, Research Assistant Eric Olson, Research Assistant Jaime Petenko, Research Assistant Kelly Singleton, Research Assistant DESIGN Rootid www.perpetuallineup.org OCTOBER 18, 2016 Writing and talk do not prove me, I carry the plenum of proof and every thing else in my face… WALT WHITMAN TABLE OF CONTENTS I. EXECUTIVE SUMMARY 1 2 A. Key Findings 4 B. Recommendations II. INTRODUCTION 7 III. BACKGROUND 9 9 A. What is Face Recognition Technology? 9 B. The Unique Risks of Face Recognition 10 C. How Does Law Enforcement Use Face Recognition? 12 D. Our Research IV. A RISK FRAMEWORK FOR LAW ENFORCEMENT FACE RECOGNITION 16 A. Risk Factors 16 17 B. Risk Framework V. FINDINGS & SCORECARD 23 23 A. Deployment 31 B. Fourth Amendment 41 C. Free Speech 46 D. Accuracy 53 E. Racial Bias 58 F. Transparency & Accountability VI. RECOMMENDATIONS 62 62 A. Legislatures 65 B. Law Enforcement 68 C. The National Institute for Standards & Technology 69 D. Face Recognition Companies 70 E. Community Leaders VII. CONCLUSION 72 VIII. ACKNOWLEDGEMENTS 74 IX. ENDNOTES 75 X. METHODOLOGY 93 XI. MODEL FACE RECOGNITION LEGISLATION 102 XII. MODEL POLICE FACE RECOGNITION USE POLICY 116 XIII. ABOUT THE AUTHORS 120 XIV. CITY & STATE BACKGROUNDERS 121 1 I. EXECUTIVE SUMMARY There is a knock on your door. It’s the police. obtained about state and local systems, we find There was a robbery in your neighborhood. They that law enforcement face recognition affects have a suspect in custody and an eyewitness. But over 117 million American adults. It is also they need your help: Will you come down to the unregulated. A few agencies have instituted station to stand in the line-up? meaningful protections to prevent the misuse of the technology. In many more cases, it is out of Most people would probably answer “no.” This control. summer, the Government Accountability Office revealed that close to 64 million Americans do not have a say in the matter: 16 states let the One in two American adults FBI use face recognition technology to compare the faces of suspected criminals to their driver’s is in a law enforcement face license and ID photos, creating a virtual line-up recognition network. of their state residents. In this line-up, it’s not a human that points to the suspect—it’s an algorithm. The benefits of face recognition are real. It But the FBI is only part of the story. Across the has been used to catch violent criminals and country, state and local police departments are fugitives. The law enforcement officers who use building their own face recognition systems, the technology are men and women of good many of them more advanced than the FBI’s. faith. They do not want to invade our privacy or We know very little about these systems. We create a police state. They are simply using every don’t know how they impact privacy and civil tool available to protect the people that they are liberties. We don’t know how they address sworn to serve. Police use of face recognition is accuracy problems. And we don’t know how any inevitable. This report does not aim to stop it. of these systems—local, state, or federal—affect Rather, this report offers a framework to reason racial and ethnic minorities. through the very real risks that face recognition This report closes these gaps. The result of a year- creates. It urges Congress and state legislatures long investigation and over 100 records requests to address these risks through commonsense to police departments around the country, it is regulation comparable to the Wiretap Act. These the most comprehensive survey to date of law reforms must be accompanied by key actions enforcement face recognition and the risks that by law enforcement, the National Institute it poses to privacy, civil liberties, and civil rights. of Standards and Technology (NIST), face Combining FBI data with new information we recognition companies, and community leaders. 2 The Perpetual Line-Up A. KEY FINDINGS 3. By tapping into driver’s license databases, the FBI is using biometrics in a way Our general findings are set forth below. Specific it’s never done before. Historically, FBI findings for 25 local and state law enforcement fingerprint and DNA databases have agencies can be found in the City & State been primarily or exclusively made up Backgrounders (p. 121). Our Face Recognition of information from criminal arrests or Scorecard (p. 24) evaluates these agencies’ impact investigations. By running face recognition on privacy, civil liberties, civil rights, transparency searches against 16 states’ driver’s license and accountability. The records underlying all of photo databases, the FBI has built a our conclusions are available online. biometric network that primarily includes 1. Law enforcement face recognition law-abiding Americans. This is unprecedented networks include over 117 million and highly problematic. American adults—and may soon include 4. Major police departments are exploring many more. Face recognition is neither new real-time face recognition on live nor rare. FBI face recognition searches are surveillance camera video. Real-time more common than federal court-ordered face recognition lets police continuously wiretaps. At least one out of four state or scan the faces of pedestrians walking by a local police departments has the option to street surveillance camera. It may seem like run face recognition searches through their science fiction. It is real. Contract documents or another agency’s system. At least 26 and agency statements show that at least states (and potentially as many as 30) allow five major police departments—including law enforcement to run or request searches agencies in Chicago, Dallas, and Los against their databases of driver’s license and Angeles—either claimed to run real-time ID photos. Roughly one in two American face recognition off of street cameras, bought adults has their photos searched this way. technology that can do so, or expressed 2. Different uses of face recognition an interest in buying it. Nearly all major create different risks. This report offers face recognition companies offer real-time a framework to tell them apart. A face software. recognition search conducted in the field 5. Law enforcement face recognition is to verify the identity of someone who has unregulated and in many instances out been legally stopped or arrested is different, of control. No state has passed a law in principle and effect, than an investigatory comprehensively regulating police face search of an ATM photo against a driver’s recognition. We are not aware of any license database, or continuous, real-time agency that requires warrants for searches scans of people walking by a surveillance or limits them to serious crimes. This camera. The former is targeted and public. has consequences. The Maricopa County The latter are generalized and invisible. Sheriff ’s Office enrolled all of Honduras’ While some agencies, like the San Diego driver’s licenses and mug shots into its Association of Governments, limit database. The Pinellas County Sheriff ’s themselves to more targeted use of the Office system runs 8,000 monthly searches technology, others are embracing high and on the faces of seven million Florida very high risk deployments. 3 drivers—without requiring that officers have specialized training, human users make the even a reasonable suspicion before running wrong decision about a match half the time. We a search. The county public defender reports found only eight face recognition systems where that the Sheriff ’s Office has never disclosed specialized personnel reviewed and narrowed the use of face recognition in Brady evidence. down potential matches. The training regime for examiners remains a work in progress. 6. Most law enforcement agencies are not taking adequate steps to protect free 9. Police face recognition will speech. There is a real risk that police face disproportionately affect African recognition will be used to stifle free speech. Americans. Many police departments do There is also a history of FBI and police not realize that. In a Frequently Asked surveillance of civil rights protests. Of the Questions document, the Seattle Police 52 agencies that we found to use (or have Department says that its face recognition used) face recognition, we found only one, system “does not see race.” Yet an FBI co- the Ohio Bureau of Criminal Investigation, authored study suggests that face recognition whose face recognition use policy expressly may be less accurate on black people. Also, prohibits its officers from using face due to disproportionately high arrest rates, recognition to track individuals engaging in systems that rely on mug shot databases likely political, religious, or other protected free include a disproportionate number of African speech. Americans. Despite these findings, there is no independent testing regime for racially biased 7. Most law enforcement agencies do little error rates. In interviews, two major face to ensure that their systems are accurate. recognition companies admitted that they did Face recognition is less accurate than not run these tests internally, either. fingerprinting, particularly when used in real-time or on large databases. Yet we found only two agencies, the San Francisco Police Face recognition may be Department and the Seattle region’s South Sound 911, that conditioned purchase of the least accurate for those it is technology on accuracy tests or thresholds.
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