Public Records Show Cops Are Obscuring Their Use Of Facial Recognition Tech In Criminal Cases

What an absolute shocker. What a completely unexpected turn of events. Oh how will we, as Americans, process this latest in a never-ending string of abuses of trust by law enforcement. What a time to be alive. Etc.

Cops are always trying to hide the tech they use from criminal defendants, even when plenty of criminal defendants are already aware such tech exists. And they tend to get away with it, either by convincing courts that releasing any details about the tech’s use in a specific case will give away the entire game, allowing criminals to run rampant thanks to the divulging of information they likely already know or by simply walking away from the prosecution before being forced to turn over any details on the tech itself.

The other option is the one detailed in this report by the Washington Post: don’t tell courts or defendants about the use of certain tech during criminal prosecutions. That’s the option a lot of cop shops are using, which means defendants are being deprived of their constitutional right to challenge the veracity of the evidence being used against them. The operative move for facial recognition tech — despite pretty much everyone being aware of its use and capabilities — appears to be “Don’t tell, or else someone will ask.”

[T]he records show that officers often obscured their reliance on the software in public-facing reports, saying that they identified suspects “through investigative means” or that a human source such as a witness or police officer made the initial identification.

In Evansville, Ind., for example, police said they identified a man who beat up a stranger on the street from his tattooed arms, long hair and previous jail booking photos. And in Pflugerville, Tex., police said they learned the name of a man who helped steal $12,500 in merchandise from Ulta Beauty “by utilization of investigative databases.”

The first assertion is likely only true because the officers moved from faces to bodies after opening the investigation with a facial recognition search. The second is only true because pretty much any surveillance tech involves the use of “investigative databases.” These are not honest assertions. They’re deliberately misleading with the intent of ensuring defendants don’t start asking too many questions about the questionable tech these agencies relied on to move forward with an arrest.

How questionable? Well, here’s another fun anecdote about facial recognition tech hobgoblin Clearview AI, whose database is comprised of 10 billion+ images scraped from the public internet.

Clearview search results produced as evidence in one Cuyahoga County, Ohio, assault case included a photo of basketball legend Michael Jordan and a cartoon of a Black man.

To be overly courteous, Clearview’s legal office sent the Washington Post a statement claiming the first two results in that search were pictures “of the perpetrator,” who “pleaded guilty.” To be completely fair, this is a statement issued by someone protecting Clearview’s best interests and people plead guilty to crimes they didn’t commit all the time because the “trial tax” is too high to bother fighting.

(“Trial tax” is the term used to cover everything from prosecutors seeking excessive bail amounts simply because the still legally-innocent person refused to immediately plead guilty to the amount of money needed to successfully defend yourself against a government that is now operating in “vindictive” mode due to your failure to immediately capitulate. And, on top of that, there’s the lost wages, lost jobs, lost housing, property seizures [including vehicles], and other miseries that come in to play simply because you’ve been accused of committing a crime.)

Despite the claim this country believes people “innocent until proven guilty,” the government gets to play with a full deck during prosecutions while defendants are expected to craft a hand from the lowest numbers and the occasional “how to play” instruction card. But the government thinks there can never be quite enough thumb on the scale. So, this sort of thing happens: the deliberate destruction of information that might be useful to defendants.

The Coral Springs Police Department in South Florida instructs officers not to reveal the use of facial recognition in written reports, according to operations deputy chief Ryan Gallagher. He said investigative techniques are exempt from Florida’s public disclosure laws.

“Please do not document this investigative lead,” a department message appended to each photo search result says.

The department would disclose the source of the investigative lead if it were asked in a criminal proceeding, Gallagher added.

The deputy chief is answering a question no one asked. While it’s possible information about facial recognition searches might be exempt from public records laws, the fact that this information was obtained via a public records request renders Gallagher’s initial assertion meaningless.

The instruction telling officers to not create a permanent record of facial recognition searches renders Gallagher’s second assertion equally meaningless. If officers never create a record of a search, the PD has nothing to turn over to defendants who request these records during criminal proceedings. In other words, this man should not hold the position of deputy chief. His inability to lie credibly makes him dangerously under-qualified.

This isn’t just a problem at a few isolated law enforcement agencies. It appears to be standard operating procedure wherever agencies think they might get away with it.

Over the past four years, the Miami Police Department ran 2,500 facial recognition searches in investigations that led to at least 186 arrests and more than 50 convictions. Among the arrestees, just 1 in 16 were told about the technology’s use — less than 7 percent —according to a review by The Post of public reports and interviews with some arrestees and their lawyers.

Prosecutors have now vowed to disclose this information to defendants, but only because the Washington Post started asking a bunch of questions neither the PD or local prosecutors felt willing to answer. The answers they did give just make things worse. The state attorney for Miami Dade County said police had never informed her about use of facial recognition tech in a “vast majority of cases.” This resulted in a new rule on disclosure being issued by the state attorney. But the state attorney’s office apparently feels anyone who’s been screwed by this lack of disclosure should remain screwed.

[H]er office said it could not commit to reviewing all 186 cases identified by The Post. In an email, Chief Assistant State Attorney Kathleen Hoague said “it is more important for us to work on a policy moving forward.”

I’ll bet there are at least 186 people who would disagree with that statement, Kathleen. Let’s say you just found out your publicly-owned electric company has been overcharging you for four years straight. Would you be fine with them simply fixing the problem “moving forward.” Or would you want the opportunity to reclaim four years of over-payments? I’m sure I already know the answer. The problem is you’re pretending you’d be fine with a belated non-apology and a vague statement about improvement.

Making things worse are agencies that generate arrests with facial recognition tech that they don’t even own. In cities and states where facial recognition bans/restrictions are in place, local agencies routinely outsource searches to agencies unaffected by these laws. And, since they didn’t run the searches themselves, they rarely feel obligated to turn over this information to public records requesters, much less accused criminals whose freedoms and futures are on the line.

So it continues. The entities with the most power in criminal prosecutions continue to demonstrate they believe the imbalance of power just isn’t big enough. And it’s left up to citizens, journalists, and activists to dig through documents to discover how the government is screwing people this time. It’s robbing Peter to rob Paul: reaching into our pockets to ensure they remain funded enough to perpetually screw people out of what’s constitutionally owed them.