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What to do if a cop tries to scan your face during a traffic stop

by Brooke Kaufman

In recent years, law enforcement’s use of facial recognition technology during investigations has steadily increased. This rise can largely be attributed to the “booming” surveillance industry, which draws from a growing cache of publicly available biometric data. Limits on the use of this technology, however, are part of a legal gray area that is “constantly evolving” alongside privacy concerns.

The latest development? Law enforcement agencies are shopping the idea of using facial recognition at traffic stops.

First reported by Insider’s Caroline Haskins, this suggestion first arose in a 2021 episode of “Street Cop Training,” a podcast hosted by Dennis Benigno that caters to police officers looking to develop new investigative techniques.

“Let’s say you are on a traffic stop and we have someone in the car who we suspect may be wanted?” Benigno asked his guest, Nick Jerman, a D.C. police officer. “How would you go about investigating somebody who you think may be trying to hide their apprehension and hide out who they are?”

Jerman responded by saying “there a couple paid programs” police officers can use to take a driver’s picture and upload it to a facial recognition database for more information. This situation, whether put into practice or not, represents a “radical shift” in police use of facial recognition — a technology that many privacy advocates worry lacks the accuracy to be used as an investigative tool.

Such a use of this technology may also violate U.S. laws. According to Nate Wessler, the Deputy Director of the ACLU’s Speech, Privacy, and Technology Project, many cities and states have passed legislation limiting the use of public facial recognition. For example, in the state of Maine, law enforcement can only use facial recognition for serious felonies and with a warrant.

Wessler, speaking to Gizmodo, went on to affirm that error rates in facial recognition technology are “too high for any match to act as probable cause to arrest someone.” Essentially, algorithms are being used to make “their best guess” on a person’s identity based on the driver’s photo and what’s in the database. The conditions of a traffic stop are also “imperfect,” and are unlikely to replicate the accuracy of high-profile facial recognition tests. Wessler said a false arrest lawsuit under the Fourth Amendment is thus a considerable risk for police officers in this situation.

Greg Nojeim, a Senior Counsel and Co-Director of the Security and Surveillance Project at the Center for Democracy & Technology, told Insider that Jerman’s suggestion could potentially be illegal if police officers lacked “reasonable suspicion” as to whether the driver had committed a crime.

How can you prepare for this situation during a traffic stop? Wessler said drivers have a right to not consent to having their “biometrics” (or image of their face) collected. Even if the officer persists, this statement could be useful in rights litigation down the road. There is also the option to record your traffic stop, which could deter an officer from further engaging in what some would consider a rights violation. Wessler did warn people to remain cautious in interactions with the police given the recent rise in deadly traffic stops in the United States.

Practically, however, the advantage of using facial recognition during traffic stops is unclear given the authority police have to ask a driver for their license.

“This seems unnecessary,” Wessler said, “It’s putting this incredibly powerful and unregulated surveillance tool in the hands of beat cops to use with no oversight, no rules, no predicate level of suspicion, no confirmatory steps. And that’s just a recipe for disaster.”

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