Taking Pictures in the Dark: Florida Police Not Forthcoming About Investigations Using Facial Recognition Software
by Douglas Ankney
Florida law enforcement uses what is known as the Face Analysis Comparison Examination System (“FACES”), which selects from more than 33 million driver’s license and law enforcement photographs.
FACES is designed to return multiple possible matches for an uploaded image. The current system was implemented in 2001. Florida authorities now use FACES in about 8,000 searches each month, which is nearly twice the average number performed by the FBI.
In a 2016 report from Georgetown’s Center on Privacy & Technology, it was revealed that the system was not audited for error or misuse. The Jacksonville Sheriff’s Office stated it does not have any formal policies concerning FACES. Even though the technology is used widely throughout the state, public defenders told Georgetown researchers the police do not “disclose information about specific uses of the system during criminal cases.”
In 2015, undercover agents with the Jacksonville Sheriff’s Office photographed a suspect selling $50 worth of cocaine. Uploading the photo to FACES resulted in five possible matches, including that of Willie Allen Lynch, who was ultimately convicted of the crime. Neither Lynch nor his attorney were informed that FACES was used in the investigation. Only because Lynch filed handwritten motions seeking to depose the detectives and the crime analyst did he learn of the technology months into his case.
“Without knowing that facial recognition was used and the details, it’s impossible for defendants to know if its use in advancing an investigation was proper,” said Jake Lapperuque, senior counsel at the Constitution Project. “It’s the equivalent of police basing their investigation on an eyewitness account, but then not letting the defendant know the witness was used, or if what they saw was from 5 or 500 feet away.” Laperruque pointed out that “factors such as algorithm quality, confidence thresholds, and the format for returning matches can all affect the accuracy of the technology.” For those reasons, many advocates argue that Brady v. Maryland, 373 U.S. 83 (1963), requires police to disclose that facial recognition software was used.
At a pretrial deposition, the crime analyst who uploaded the drug dealer’s photograph to FACES testified that the system uses a star system to rate the quality of matches. She said Lynch had one star while the other four had none. She did not know the maximum number of possible stars.
Lynch claimed he had been misidentified. He is black. Researchers at MIT published a study in 2018 testing the three most advanced facial-recognition systems available. The error rate was about 12 percent for darker-skinned males.
Lynch requested that he be provided with the photos of the four other matches, but the trial court denied his request. In a motion for rehearing, Lynch’s public defender wrote, “If any of the photographs of the other potential matches from the facial recognition program resembles the drug seller or Appellant then clearly there was a Brady/discovery violation and Appellant should be granted a new trial.”
The First District Court of Appeals ruled that Lynch had no right to view the photographs because he could not prove they resembled his own. But neither Lynch nor his appeals attorney, Victor Holder, had access to the photographs. Without them, it could not be argued the outcome of the trial would have been different. Holder told the Florida Times Union he is looking into avenues for further appeal.
“Florida law enforcement agencies currently use facial recognition technology with little to no public awareness, no uniform standards governing its use, and no public oversight by the Florida Legislature,” he said.
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