Congress and states that rely on mug shot databases for face recognition should follow the lead of Michigan, which requires the destruction of biometric data from people who are arrested but have been found innocent, or who have had the charges against them dropped or dismissed. The FBI should do this voluntarily, whether or not Congress commands it to do so.
- Recommendation 3. Searches of license photos should only occur if state legislatures vote to allow them. States that allow access should notify the public.
Unless and until state legislatures openly debate this access and affirmatively vote to grant it, law enforcement face recognition systems should constrain themselves to mug shot databases. Even if state legislatures do approve searches of license and ID photos, many citizens may remain unaware of this practice. Therefore, these states should implement a notice requirement similar to that of Washington State, which requires special notices to driver’s license applicants, online postings, and “notices in conspicuous locations” in the Department of Licensing’s physical offices.
- Recommendation 4: Searches of driver’s license and ID photos should occur only under a court order issued upon a showing of probable cause.
States that allow searches of driver’s license and ID photos should require a higher level of individualized suspicion, preferably probable cause, for those searches. If a state scans all of its drivers’ faces as part of criminal investigations, it should, at a minimum, ensure that those searches are based on reasonably trustworthy information.
The determination of probable cause should not be in the hands of the police or the FBI. It should be in the hands of a state judge or a federal judge with jurisdiction over the state. As with the Wiretap Act, this judicial oversight requirement should not be total. In true emergencies, searches should initially proceed without judicial approval (but require a follow-up application). Other scenarios should not require judicial approval at all. These include searches to identify missing children, deceased victims, and lawfully arrested people during the booking process.
We also believe that judicial approval should not be required for police searches that are narrowly designed to detect identity theft and fraud. These searches parallel departments of motor vehicles’ longstanding practice of “de-duping” ID photos to detect fraud.
- Recommendation 5. Limit searches of license photos—and after-the-fact investigative searches—to investigations of serious offenses.
There is a tradition in American law enforcement of limiting the most controversial investigative techniques to the most serious crimes. That principle should apply to face recognition: If a state decides to allow law enforcement to conduct face recognition searches of its driver’s license and other ID photos, it should limit those searches to serious offenses, preferably those identified in the oral and wire provisions of the Wiretap Act, and identity theft and fraud.
This principle should also apply to Moderate Risk deployments, which involve face recognition against a mug shot database. In a Stop and Identify deployment, where a police officer encounters someone in person, takes her photo, and uses that photo to run a face recognition search, the use of the technology is at least somewhat transparent to the search subject. In a lawfully initiated officer encounter, that officer’s safety is also in play; he has a need to know whether he is interacting with a law-abiding citizen or a wanted felon.
In an Arrest and Identify search, where someone is arrested and her mug shot is simultaneously enrolled and run against a mug shot database, use of face recognition may or may not be transparent—but the Supreme Court has recognized a strong state interest in the reliable identification of suspects in government custody.
In an Investigate and Identify search, where a suspect is identified after the commission of the offense from a video still or surreptitious photograph, none of these interests are at play. The search is entirely invisible to the subject and the public at large. Outside of the public eye, there is a risk that some officials may use a minor offense, like jaywalking, as a pretext to justify a search to identify a peaceful protester—or an attractive member of the opposite sex. For this reason, we believe that Investigate and Identify searches—even those limited to mug shot databases—should be limited to investigations of felonies.
- Recommendation 6. Real-time video surveillance should only occur in life-threatening public emergencies under a court order backed by probable cause.
When operating through a large network of street surveillance footage—or, potentially, police-worn body cameras—real-time, continuous face recognition would allow law enforcement to secretly locate people and track their movements. Real-time video surveillance offers police the same abilities as do real-time GPS tracking or access to cell-site location information, techniques that require court-issued warrants in a growing number of jurisdictions.
A simple warrant is not enough, however. If deployed pervasively, real-time video surveillance threatens to create a world where, once you set foot outside, the government can track your every move.
Some communities may conclude that real-time video surveillance is too inaccurate, or too threatening to civil liberties. Communities that decide to allow real-time video surveillance under a probable cause-backed court order should issue those orders only:
- in life-threatening public emergencies;
- in specific locations for a limited period of time; and
- upon a showing that law enforcement has exhausted other means to investigate the crime.
Most of these restrictions have direct analogs in the Wiretap Act. Also like the Wiretap Act, if law enforcement is forced to use real-time video surveillance without a court order, it should file a prompt follow-up application to a court.
- Recommendation 7. Use of face recognition to track people on the basis of their race, ethnicity, religious or political views should be prohibited.
A statute regulating law enforcement face recognition should prohibit the use of the technology to track individuals solely on the basis of their political or religious beliefs, or any other conduct protected by the First Amendment, and prohibit tracking of individuals solely on the basis of their race, ethnicity, or other protected status. Without these prohibitions, there is a real danger that face recognition could chill free speech or endanger access to education or public health.
- Recommendation 8. All law enforcement use of face recognition should be subject to public reporting requirements and internal audits.
Face recognition is too powerful to be secret. Any law enforcement agency using face recognition should be required to annually and publicly disclose information directly comparable to that required by the Wiretap Act. This would include:
- the number of face recognition searches run;
- the nature of those searches (i.e. Stop and Identify, Arrest and Identify, Investigate and Identify);
- the crimes that those searches were used to investigate;
- the arrests and convictions that resulted from those searches;
- the databases that those searches accessed;
- for real-time video surveillance, the duration and approximate location of those searches; and
- any other information that the jurisdiction deems appropriate.
These transparency measures should be coupled with the logging of all searches and rigorous audits to prevent and identify misuse.