Does facial recognition technology raise privacy concerns?

When convicted killer James Robert Jones escaped from Fort Leavenworth in Kansas in 1977, he couldn’t have imagined the circumstances that would lead to his capture nearly 40 years later.

Jones, a former soldier, had been convicted in 1974 for stabbing to death another soldier, 18-year-old Pvt. Lonnie Eaton. His sentence was 23 years in military prison. After escaping, Jones moved to Florida, where he lived under the name Bruce Walter Keith.

Federal marshals located Jones, then 59, in 2014, after they used facial recognition technology to compare Jones’ old military photo to photos from a database of Florida driver’s licenses—including one issued to him as Keith in 1981. After they made a positive match, the authorities arrested Jones at the air conditioning repair shop in Pompano Beach where he had been working.

The sophisticated technology that helped nab Jones enables people to be identified based on photos of them—including pictures taken by state agencies, such as departments of motor vehicles, as well as surveillance footage captured by street cameras.

In general, the software relies on algorithms to compare different photos and determine whether they depict the same person. Although the field is still in its infancy, its popularity is growing. Law enforcement officials are using it to help solve crimes and find fugitives. The private sector is drawing on facial recognition for confirming airport check-ins, helping people identify their friends on social networking sites and more.

PRIVACY issueS

Although the technology is proving useful on a variety of fronts, its growing deployment is raising alarms among civil libertarians, who worry that the capability to identify people based solely on their appearance will erode their privacy.

Cameras are ubiquitous on the streets already. If the technology comes into wider use, people could be identified as they go about their daily business.

Anyone in a free society should be able to go out in public and be a face in the crowd without anyone knowing where they are coming and going.  However, there is no reason to fear if the images of innocent persons are recoded because the authorities aren’t looking for their images. 

However, if they are terrorists like the Tsarnaev brothers who planted bombs in the 2013 Boston Marathon; identifying them by cameras on the street is justifiable.

More than 117 million U.S. adults are already in databases that can be accessed at will by law enforcement officials seeking to deploy facial recognition software, according to a 2016 report by the Center on Privacy & Technology at Georgetown University Law Center.

For example, the FBI has arrangements with officials in 18 states to access driver’s license photos to investigate crimes by comparing them to photos of suspects. Law enforcement officials say they need all the tools at their disposal to fight crime.

However, there are others think that the authorities might be overstepping the rights of others with these initiatives. “Innocent people should not be on this database,” said Rep. Stephen Lynch, D-Mass., during a recent congressional hearing on the subject. “This is corrosive of our very liberty.”

I have a problem with his views on this subject. I will give you an example as to why I don’t agree with him.

Your 15-year-old daughter has been missing for a month. The police are searching for her via face recognition technology and  five hours later, they spot her image on a street being accompanied by a man. They keep following them via the street cameras until they enter a house. The police raid the house and rescue her from her kidnapper.

Delta Air Lines recently started testing a facial recognition system in Minneapolis that allows passengers who have passports to check their bags at a kiosk and then verify their identity via a facial scan.

In June, JetBlue Airways began to test a boarding procedure that relies on scans of passengers’ faces in lieu of physical boarding passes.

And internet companies such as Facebook use the technology to enable people to automatically tag their friends in photos.

Developers in Russia created a dating app, FindFace, that lets people take photos of strangers and then discover their identities, provided they have a photo on the social media network VK, according to The Guardian, a British newspaper.

There is very little people can do to prevent others from using this kind of software. “It is very easy for someone to get our faces recorded without our knowledge or permission.  There’s nothing we can do to hide our faces, short of wearing ski masks all the time which would be very suspicious behavior in the warm days.

Alvaro Bedoya, a professor at Georgetown Law and executive director of the Center on Privacy & Technology, says use of the technology by the police might discourage people from engaging in political activity, including protests.

“There’s a real risk with regard to freedom of speech,” Bedoya says. “Are you going to go to a rally against the president, or a gun rights rally for that matter, if you know that law enforcement can take a photo of you and identify you from far away?”

Many years ago when I was practicing law, young woman came to my office me for help. She had been arrested at a political rally for spitting in the face of a police officer. Unfortunately for the arresting officers, I was given a copy of the video. I later showed it to the prosecutor. He withdrew the charge. In the images, one police officer had held her by the neck while the officer she pit at had just previously punched her in her belly.  

HOW ACCURATE IS this kind of technology?

According to Bedoya, some prior studies have suggested that facial recognition is less accurate than fingerprints, which raises the possibility that people will be targeted by the police based on incorrect identifications.

That is possible. Many years ago, a popular American magazine sent members of its staff to all fifty States in the US. Their job was to find people who looked exactly like President Eisenhower. Pictures were taken of fifty look-a-likes wearing the same clothes and having the same hair styles. When the magazine was published, all fifty faces were on the cover. There was no way that you could identify the president whose face was also on the cover of the magazine.   

Accuracy levels depend on myriad factors, including the conditions under which the photo was taken. In general, the technology has a high accuracy rate for posed photos, such as passport pictures, in which people are told to look directly at the camera.  says

But the technology is less accurate for photos taken under non-controlled conditions, such as when street cameras capture images as subjects are looking away, wearing caps or making expressions that distort their features. Obviously those images couldn’t be used as evidence unless someone walking with them and knew the person testifies that the image really was the persons the police were looking for.

LEGAL ACTIONS

No federal laws currently constrain the use of facial recognition software, and most observers think national legislation is unlikely, given the divided political environment.

However, on the state level, Illinois, Texas and Washington have laws that aim to protect people’s biometric privacy in the commercial sphere. Other states, including Alaska, Connecticut, Montana and New Hampshire, are considering regulating the use of the facial recognition technology.

The Illinois Biometric Information Privacy Act, which was passed in 2008, prohibits private sector companies from collecting some kinds of biometric identifiers, including scans of facial geometry, without obtaining people’s written consent. An employee caught stealing goods from the company that hired him would hardly give his consent  to turn the video tape over to the police.

That law has already sparked several lawsuits, including putative class actions against Facebook, Google and Shutterfly. The plaintiffs in those cases allege that the tech companies illegally created “faceprint” databases. Google declined to comment, and Facebook and Shutterfly didn’t cooperate either.

Shutterfly settled one lawsuit in spring 2016 and was sued a second time last fall. Facebook and Google have been fighting the allegations in court since 2015.

The companies raise several arguments, including that the Illinois statute is ambiguous about whether it applies to photos. The law says the restrictions don’t apply to photos or information derived from them, but the statute also appears to be aimed at regulating the technology.

Attorney Jeffrey Neuburger, co-chair of the technology, media and telecommunications group at Proskauer Rose, says the Illinois law was written before biometrics were prevalent, and that there’s very little legislative history to shed light on why photographs were excluded from the law’s definitions.

The plaintiffs argued that the law wouldn’t make sense unless it covers face scans derived from photos. So far, the plaintiffs have prevailed with that argument. “Courts have said excluding that kind of information undermines the purpose and effect of the statute.

Those lawsuits also pose questions about whether states can regulate the use of facial recognition software by a national company.

RISK OF IDENTITY THEFT

Jay Edelson, a plaintiffs lawyer in Chicago who is involved in the Facebook case, says that biometric databases could expose people to the risk of fraud.

Databases of fingerprints, voiceprints and faceprints will “be a major target for identity thieves and other bad actors out there,” he says.

Edelson speculates that fraudsters could use a 3D printer to create a mask based on a faceprint, and that it could fool cameras.

But others say that there’s no call for laws that could restrict companies from rolling out new services that at least some consumers seem to like—such as Facebook’s tagging feature, which can use facial recognition technology to help people automatically attach their friends’ names to photos.

Identity theft is illegal today, whether it’s done by impersonating anyone by going to a photo database, downloading a model of a person’s face, and printing a 3D mask like  was shown in a Mission Impossible TV story,  

The technology can have a multitude of potential positive uses, including improved security at banks and other establishments.

If there are abuses, those abuses should be specifically targeted.  If  there are abuses, then there is a need to make sure we that  the general public doesn’t go into a panic mode because of their fear of their privacy isn’t breached.

In my opinion, facial recognition technology is here to stay. We just have to make a better effort to make it fool-proof and that the authorities doesn’t overstep the boundaries of the public’s civil rights.