The Controversy of Facial Recognition

Law enforcement is having greater access to technologies in order to serve its mission and purpose. Technologies such as gun shot detection, body cameras, mobile push to talk broadband, drones and facial recognition are becoming more top of mind and visible. While new technologies may make the role of law enforcement more efficient and safer for both the officers and the public, the door is opened far and wide to concerns about perceived use, civil liberties and regulation. 

I wanted to share some perspectives from my reading and interaction with technology firms as well as my experience with public policy as it relates to technology in law enforcement. I’ve chosen one of the more controversial topics to get you thinking. I see a gap too in how technology, law enforcement, governing bodies, the public interest and public policy interrelate.

The Controversy of Facial Recognition

How many cops will ask, “I know you don’t I?”

The power of humans to recognize one another is fairly significant. When visiting a presidential candidacy announcement years ago, I saw Secret Service agents rotating cards of faces and scanning the crowd. This, I presume, helps an agent connect a recent memory with a recently identified face from photos of known threats. Yet we, as a society, might begrudgingly allow a law enforcement officer some latitude to visually identify someone as a threat when at the same time, we are entrusting that identification on the officer’s memory or ability of visual recognition. 

We’re basing a standard on human recollection, a recollection which comes from surveillance which may be flawed by distraction, quality of eyesight and even bias. We seem more trusting of human recollection over an automated recollection.

Recently, the City of San Francisco banned, or is in the process of doing so, facial recognition technology use by local law enforcement and government. Other cities are considering similar bans.  https://www.nytimes.com/2019/05/14/us/facial-recognition-ban-san-francisco.html

“Aaron Peskin, the city supervisor who sponsored the bill, said that it sent a particularly strong message to the nation, coming from a city transformed by tech. ‘I think part of San Francisco being the real and perceived headquarters for all things tech also comes with a responsibility for its local legislators,’ Mr. Peskin said. ‘We have an outsize responsibility to regulate the excesses of technology precisely because they are headquartered here.’ ” -- New York Times, May 14, 2019

City governments can do whatever they want, within the constraints of the law, and while I have an opinion about a policy such as this, I don’t live in San Francisco or represent affected businesses which makes any opinion I have, meaningless to those residents there. I’m not maligning San Francisco either but using this recent policy movement as an example. Observationally, policies that ban technology without a basis of application, regulation of use or even a history of abuses is perplexing. 

“Matt Cagle, a lawyer with the A.C.L.U. of Northern California, on Tuesday summed up the broad concerns of facial recognition: The technology, he said, ‘provides government with unprecedented power to track people going about their daily lives. That’s incompatible with a healthy democracy.’ ” -- New York Times, May 14, 2019

A power is being banned because use of that power is “unprecedented”. I don’t doubt that such a power can be abused but it hasn’t been abused yet. The Genie isn’t out of the bottle and really, we’re not sure if there is even a Genie but we’re going to keep the cork on that bottle because of what? The perception of possible unbridled or corrupted abuses of power by law enforcement. Yet it hasn’t happened. 

In this same article, those opposed to the policy, explained how such a ban would impede law enforcement’s efforts to investigate crime. Like any debate, there are multiple perspectives, positions and biases. Underlying is the suggestion that law enforcement should be leashed when applying technology to thwart criminal activity. This logic is suggesting that facial recognition is an invitation to a “stop and frisk” approach and generalized surveillance of the public is inherently a violation of our civil liberties.  Perhaps this is true and while I don’t know everything about this policy, I’m left with many questions about reasoning and motivation.

In June of 2018, a person shot and killed five at the Capital Gazette in Annapolis, Maryland. Because the suspect refused to be identified. Anne Arundel Police used the state’s facial recognition software to identify the suspect. https://www.wfmz.com/news/cnn-national/how-police-used-facial-recognition-to-id-md-shooter/760986219

There is an application for this kind of technology. In the same voice, as there is an application, the technology isn’t, to my understanding, homogenous. The principles and results may generate similar results but the pathways to arrive at those results vary. 

Policy Arguments

From extreme positions, truth and reason reside somewhere in the middle. I’m neither a police officer nor am I a scientist. However, I have worked on enough policy to understand how and why policies are formed. There is always a motivation and agenda.

From what little I understand about facial recognition, the technology is evolving in the form of design, application, refinement and limits of use. Essentially, bans on government use of a developing technology without an attempt to regulate that same use aren’t based on actual abuses but perhaps the fear of abuse. It seems to be a ideological knee-jerk reaction to an unfounded fear.

If one were to go back into history when fingerprint technology was in its infancy, would these same arguments about facial recognition be relevant? Both are biometrics. Granted fingerprint technology doesn’t really involve the same kind of surveillance arguments such as facial recognition but it is evidence someone was somewhere when perhaps a crime occurred without visually seeing that same person at the time a crime was committed, and it is worth law enforcement’s time to inquire. Fingerprint technology is also employed for the use of background checks.

Facial recognition is used by governments in licensing issuance to ensure against fraud. The basis of the technology has been around awhile and there already are existing policies and procedures of its use. This next generation of the technology can come with limits of use if we have the conversation. A conversation which would appeal to the reason of the public and to mitigate fears of onerous surveillance.

Clearly, when new technologies are presented to law enforcement, the public should have a thoughtful and exhaustive debate on the application of those technologies as it relates to civil liberties. I, for one, would never advocate for law enforcement to tacitly or directly violate the rights of anyone. However, new technologies can coexist within the law and more typically do.

Having these conversations is critical. Conversations involving advocacy groups, government, law enforcement and technology firms, collectively and collaboratively, can help create better public policy than having one-sided arguments based upon an ideology or fear of the unknown. Let’s resolve our fears with reason, logic and transparency.

Private Use of Facial Recognition

Corporations and even Taylor Swift are using facial recognition for various purposes too. Most recently, we hear of an app people can use to “age” themselves using their own image. Some politicians and media types are concerned about the owners of the app being from Russia and connecting that country and its policies to some nefarious scheme to obtain images for some equally nefarious, yet unknown, political strategy. 

We’re generally okay, as a society, with our picture and data being used by corporations even as our tolerance could be based upon ignorance or indifference. If we want to access a product, we accept there are terms and conditions for its use. We tend to trust the corporate community to retain our data and our images because, perhaps, our interest in the product reduces our concern in what we give up is being used. Corporations have never lost data, have they?

If you own a smart phone, almost everything about you is being corporately surveilled. From your location, to your interests, your searches and more are shared with a corporate mother ship. The risk is seemingly very low, but that risk diminishes as desire to use a product or service increases.  

We have to live with advertising pushes from shoes to skin care products. Government’s use of passive surveillance, through products like facial recognition or license plate recognition, tend to elevate the perception of risk or elevates the perception of an omnipotent government who tracks what we do and will swoop in to punish us when we violate the law.

We’re selective in our tolerances. If we want the utility of a smart phone, we relinquish our principles and a degree of privacy in using the smart phone to a corporation. While we can use our face to open our phone just as we would with a password or fingerprint, we are tolerant to extending our biometric data to strangers. If we want to use social media, we effectively give up rights to our data. We are buying our presence which business is selling to others. We’re okay with this, sort of. Perhaps our illusion of privacy was only just an illusion.

Business wants to know everything about our activities and interests to inform us about products. Seems harmless doesn’t it? It is all fun and games until that same data finds its way into the hands of entities we don’t like. Regulation of data is being done but will it change our experiences or tolerances? Will any regulation of business activity limit what the next new mouse trap does tomorrow? 

Nothing to Fear but Fear Itself

When it comes to some public policy it can be about this, “Free me from my fears but ignore the facts.” Fear can be powerful. President Franklin D. Roosevelt said, “there is nothing to fear but fear itself.”  Should we fear government? In some ways, yes and we should hold government accountable. There have been abuses, corruption, self-dealing, and policies which have oppressed and wrongfully imprisoned the innocent. Where there is history or when abuses are disclosed, it is important for a citizenry to push back and to self-govern and regulate government. Generally, government doesn’t exist to harm the public, by purpose. 

I’ve worked around government for a long time and briefly worked for a governmental agency. I have yet to find a great deal of competence or sustained level of interest by government to be remotely nefarious in its practices. 

Government isn’t inept but they are impacted by inertia laws and policies have on what government does and how it performs. The lack of competence doesn’t mean government employees are dumb either, they aren’t. They just don’t have the kind of power people think they have and if they have any power, they are limited in how they can apply that power. We’re kind of safe. Besides, lawmakers are enacting the laws directing government agencies to do specific things. When we complain about what agencies are doing or not doing, we need to remember, they are following the law. We regulate lawmakers at the ballot. We have power.

When it comes to technology, the only difference from a police officer visually recognizing someone who may be wanted and a technology doing the same is automation. Okay that is probably an oversimplification. As it was explained to me, an identification may result in a lead to be followed, not necessarily in an arrest. “I know you, don’t I?” While I have immense respect for law enforcement officers and agencies because I believe they have truly tough jobs we need them to do, we should also expect them to adhere to the highest standards in their application of law as they perform their job.

Some in the advocacy community are concerned about the capture and retention of our images by government. I can appreciate that. I’m not sure I want government to capture my image and ask me later why I was at Taco Casa for lunch. The thing is, government already has my image in a database. If you have a form of identification with a photo, you are part of a database and that information is owned, in effect, by the government. The same holds true for mug shots.

Law enforcement is constrained by legal precedent, laws, regulations and policy. This isn’t to say, some law enforcement officers, or law enforcement agencies don’t abuse their powers but there are legal protections and more typically, officers want to do a good job and be honorable in their service. Officers and agencies aren’t inherently abusive of the powers conveyed to them. The use of tools and technology to improve how they conduct themselves and serve are only tools and technology. Still, we can regulate how those tools are used and we should.

Unspoken Arguments

I’m cherry picking facial recognition as an issue because it is more top of mind than other controversial technology used by governments or law enforcement. The issue isn’t about banning of facial recognition, it is about the perceived silence by the vendor and technology community when technology is considered by lawmakers for adoption within a government agency. 

I’m not reading many countering viewpoints explaining what a technology is and what it is not. Perhaps I’m not seething those arguments which may also exist in the public record but aren’t newsworthy when other “facts” fit an agenda or position.  Instead, the “truth” seems to emanate from perceived misinformation, ideology, or mistrust of police. What isn’t happening, or I’m not seeing it, is a consistent open and honest debate or discussion about policy concepts based on fact and truth as opposed to fear and arguments of an “unprecedented power” which will harm a democracy. Instead of seeking reason, we stop any discussion about regulation.

The police themselves may rely upon their officers’ associations or their leaders to be the voice of reason but there does not seem to be an organized national voice consistently talking about law enforcement technology, its use, regulation, legal limits and the truth about what technology can, should, or should not do. Police agency leaders may or may not be able to dissent from state and local governance. Technology firms seeking to procure business from government may be reluctant to be vocal in their dissent if they want to acquire future contracts with government.

Perhaps I’m wrong and I would love to be educated but who is representing the interests of law enforcement technology on the debate stage? Who is representing them in policy development? Who is presenting a reasoned and fact-based set of arguments about what a technology can and cannot do?

 A Rant? Maybe this is

Sure, I’m baiting a hook to identify interest. My purposes are sincere, however. 

What I do want is our law enforcement officers to go home after a shift. I don’t want to live in a society where criminal activity is allowed or goes unpunished. Nor do I want to live in a society where the innocent are wrongfully convicted. If technology is going to be employed as a tool for law enforcement, I want there to be an honest, fact-based debate on how that technology is to be used and when it cannot be.

Officers use tools in their jobs. From speed detection technology, license plate readers, gun shot detection, radios, in-car computers, body cameras, tasers, mobile push to talk broadband systems to their own training, intellect and experiences, officers perform their roles to serve communities. 

Tools we can give to law enforcement which would keep officers and public safer, help them more efficiently perform their jobs, make it harder for people to commit crimes and contribute to the court process makes sense. I can’t imagine anyone really wanting the innocent to be accused of any crime, let alone be convicted of a crime and there are protections. Charging and convicting someone of a crime should not be an easy process. Simply put though, these tools help law enforcement see better and to be more effective. Recent policy applications seem to work to make law enforcement more blind. Still, law enforcement has to abide by existing limits to its power and is expected to serve within those limits.

What remains perplexing, to me, is how policies are being adopted by governments from a basis of a “what could happen, and it would be really bad” ideology. Where is the basis of fact? You can legislate morality and you can legislate based on the unknown. 

Isn’t public policy better when it is based upon fact, known and documented experience and with the intent to find the best solution to protect and serve the best interests of the public? Even if banning something is a great idea, let’s do so based upon fact rather than an emotional fear of the what hasn’t happened or may never happen.

Law enforcement technology needs to have a voice in these debates. Law enforcement needs clarity in how to perform a very hard job. Lawmakers need facts to make policy to properly represent the public. The fact-based truth needs to be presented and if policy still goes forward, at least it is based upon fact rather than misinformation.

Who has your voice? Let’s start the discussion.

Michael R. Terry is the COO and National Government Relations Director for Government State and Local Partners LLC, an Austin based government affairs and business to government technology ventures firm. www.gslptexas.com