Memo to the DOJ: Facial Recognition’s Threat to Privacy is Worse Than Anyone Thought

Before all of this ever went down
In another place, another town
You were just a face in the crowd
You were just a face in the crowd
Out in the street walking around
A face in the crowd

-Tom Petty

If we don’t speak up now, the days when we can walk around with our heads held high without fear of surveillance are numbered. Federal and local law enforcement across the country are adopting sophisticated facial recognition technologies to identify us on the streets and in social media by matching our faces to massive databases.

We knew the threat was looming. But a brand new report from the Georgetown Law Center for Privacy and Technology indicates the problem is far worse than we could’ve imagined.  The researchers compare the use of facial recognition to a perpetual line-up, where everyday, law-abiding citizens are pulled into law enforcement investigations without their consent and, in many cases, without their knowledge.

The researchers sent more than 100 public records requests to police agencies. Among their findings:

• One in two Americans adults has their image in a facial recognition network, impacting more than 117 million people. Law enforcement in at least 26 states use facial recognition in combination with driver license and ID photos.  Sixteen states grant the FBI access to their DMV databases. 
• At least five large cities, including Los Angeles, Chicago, and Dallas, use or have considered using facial recognition to scan the faces of pedestrians in real time with surveillance cameras.
• Facial recognition is almost completely unregulated. No states have passed comprehensive laws limiting facial recognition, and only one of 52 agencies surveyed expressly forbids police from using facial recognition to surveil people engaged in political, religious, or other First Amendment protected activities. Very few have taken measures to ensure accuracy of facial recognition results or have audited their systems for abuse.
• Facial recognition systems have a disproportionate impact on Communities of Color. One study, which included an FBI researcher, found the technology is less reliable when analyzing African American faces. Because African Americans are already arrested at a disproportionate rate, their mugshots are overrepresented in facial recognition databases. If the technology has a higher rate of misidentification for people of color, this will also increase the chance that they will be considered a suspect for a crime they didn’t commit. EFF raised many of these issues in our response to the FBI’s plan to exempt its Next Generation Identification biometric database.

In response to the report, EFF has joined a large coalition of privacy advocates to demand the U.S. Department of Justice, Civil Rights Division take two major steps to keep facial recognition in check:

1. Expand ongoing investigations of police practices and include in future investigations an examination of whether the use of surveillance technologies, including face recognition technology, has had a disparate impact on communities of color; and

2. Consult with and advise the FBI to examine whether the use of face recognition has had a disparate impact on communities of color.

The problem isn’t just the police but also an aggressive push by biometric tech vendors who downplay the accuracy issues while marketing the systems as crucial to contemporary policing.  The danger that facial recognition poses to our privacy and civil liberties is real and immediate. While we do give up a small amount of privacy when we walk around in public, we must preserve our ability to blend in as just a face in the crowd.

Read the Georgetown Law report on facial recognition: The Perpetual Line-Up: Unregulated Police Face Recognition in America.

Read the coalition letter to the U.S. Department of Justice Civil Rights Division.