By: Alex Crowley
Facial recognition technology has a long history of mistaken identifications resulting in false arrests. Robert Williams, a Black man accused of stealing watches from a luxury store, can attest to this sad reality after he was jailed overnight following an arrest largely justified by a bad match from the Detroit Police Department’s facial recognition system. Randall Reid, a Black man accused of stealing luxury purses in a suburb of Baton Rouge, Louisiana, can also attest after he was mistakenly arrested on a fugitive warrant largely based on incorrect facial recognition identification. As these situations demonstrate, facial-recognition technology is somewhat unreliable and contributes to unjust incarcerations, especially for Black, Asian, and Native American men and women. The Massachusetts Legislature has acknowledged the severity of this issue and recently proposed a bill that would curb police use of facial recognition technology during criminal investigations.
House docket 2304 proposes that “[a]bsent express authorization in a general or special law to the contrary, it shall be unlawful for a law enforcement agency or officer to acquire, possess, access, use, assist with the use of or provide resources for the development or use of any biometric surveillance technology, or to enter into a contract with or make a request to a third party, including any federal agency, for the purpose of acquiring, possessing, accessing or using information derived from a biometric surveillance technology.” Furthermore, the bill provides that the state police may perform a facial recognition search for the following purposes: 1) to execute a warrant related to a potential felony, 2) upon reasonable belief that a facial recognition search is necessary to prevent death or serious physical injury, 3) to identify a deceased person, or 4) on behalf of another law enforcement agency or a federal agency, provided that such agency obtained a warrant.
Essentially, the current bill provides that police cannot use facial recognition technology as the sole justification for an arrest, and cannot provide only facial recognition evidence to a magistrate while advocating for the issuance of a search or arrest warrant. Kade Crockford, Technology for Liberty program director for the Massachusetts ACLU, believes the current bill is very beneficial for both the police and the public. Crockford writes, “[t]he police can [still] use the technology to help them solve very serious crimes. . . [a]nd the public can benefit not only from that, but also from regulations that protect our basic privacy and civil rights at the same time.” Crockford went on to discuss that by passing this legislation, lawmakers can prevent those types of mistakes from happening here. “[I]f they do, it would make Massachusetts a leader, not only here in the United States, but really, worldwide,” Crockford argues. While a similar bill did not reach the Senate for a vote last year, Crockford hopes that new Governor Maura Healey’s previous support of the bill will improve its chances this year.
Crockford alludes to several relevant points, namely that this new bill could benefit both the police and the public. While the proposal would eliminate the ability for officers to arrest or obtain warrants based only on facial recognition matches, it does not banish their use in appropriate situations. This technology can still be used as evidence to establish probable cause that the suspect has committed a felony while applying for warrants. In that sense, facial recognition searches still provide substantial value to officers during serious criminal investigations.
Furthermore, the bill provides obvious value for the public. This proposal limits officers’ ability to rely solely on this inaccurate technology when making arrests or applying for warrants. Police procedures enacted because of this bill would reduce the number of faulty arrests due to mistaken identification, especially for Black, Asian, and Native American civilians. In that sense, the bill not only protects against violations of individual privacy rights, but also civil rights.
The bottom line of this proposed bill is that everyone wins. Police would maintain the ability to use this technology during serious criminal investigations in a way that promotes more accurate suspect identification. The public would gain valuable privacy and civil rights protections because of the limited scope of use for facial recognition technology, which would promote more accurate suspect identification. As I am sure Robert Williams and Randall Reid would agree, the Massachusetts legislature would be wise to adopt these protective measures.
Student Bio: Alex Crowley is a second-year day student at Suffolk University Law School. He is a staff writer on the Journal of High Technology Law. Alex received a Bachelor of Science Degree in Biology from Stonehill College in 2017.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.
