Legal Brief: Facial Recognition 180 in Detroit

This article originally appeared in the December 2020 issue of Security Business magazine. When sharing, don’t forget to mention @SecBusinessMag on Twitter and Security Business magazine on LinkedIn.

I have written in this column several times about the controversial use of facial recognition technologies for law enforcement purposes. For example, in my July column, I wrote about a landmark study published by the National Institute of Standards and Technology (NIST) alleging bias in facial recognition algorithms (www.securityinfowatch.com/21143109); and in September about the another NIST study assessing the performance of facial recognition algorithms on faces partially covered by masks (www.securityinfowatch.com/21151102).  

As reflected in my prior writings, facial recognition has been under fire from civil liberties groups, who claim it is unreliable and disproportionately discriminates against minority populations.

This past summer, big tech companies – like IBM, Microsoft and Amazon – announced that they were temporarily restricting the use of this technology by law enforcement.

Cities such as Boston, San Francisco, Oakland and New York – prohibited or substantially restricted the use of facial recognition technology by law enforcement. Portland, Ore., took even more drastic measures imposing a ban not only on city agencies (including local police), but also on public-facing private businesses such as stores, restaurants and hotels.

It is in the face of these trends that the city of Detroit – confronting its own violent crime problem – elected to handle the matter differently.

Common Sense Limitations

After about two years of controversy, the Detroit Board of Police Commissioners, a civilian body that oversees the police, has approved new guidelines that allow for the use of the technology, subject to a series of restrictions intended to mitigate abuse.

Among the restrictions are the following:

• Police use of facial recognition to is limited to still photographs and not be permitted for live video streams – such on those transmitted to Detroit's police headquarters from hundreds of gas stations, restaurants and other businesses.
• The use of the technology is limited to violent crime and home invasion investigations.
• Several layers of approvals are required before the technology can be used for other purposes, such as identifying people at political events or protests. Even if used at such events, it must be in connection with a violent crime or home invasion investigation.
• Police Department personnel, private contractors and other authorized personnel will be required to undergo training, with specialized training for the examiners who actually process facial recognition requests and submissions.
• The examiners are to assess the image quality and appropriateness of facial recognition searches and to perform one-to­many and one-to-one facial image comparisons.
• The result of a facial recognition search is provided only as an investigative lead and cannot be used in court as a positive identification of a suspect.
• The use of facial recognition technology is subject to random audit.
• The Department is mandated to report on how often facial recognition software was used and for what purpose.
• The directive provides for disciplinary consequences for personnel who misuse the technology.

Balancing Safety and Privacy

I have been relatively neutral in my writings on the use of facial recognition – not adamantly taking a stance in one direction or another; however, I have also noted that I am a former military and federal prosecutor – so I favor empowering law enforcement.

This latest directive from the Detroit Police Department – although not perfect – earnestly seeks to strike a balance between empowering the police and protecting the civil rights of citizens. I applaud Detroit for this initiative and hope that they will continue to deploy and evolve this important technology.

We have a tragically high violent crime rate in this country – disproportionately impacting major cities like Detroit. Outright bans of technologies like facial recognition only makes the problem worse. We can and should seek to use the technology available to us – subject to the important safeguards that Detroit is endeavoring to impose.

The issue will now shift to the Detroit City Council and perhaps the Michigan legislature. My hope for the people of Detroit is that the technology will survive legislative challenges, but also be sufficiently limited to protect the rights of all citizens.

Timothy J. Pastore, Esq., is a Partner in the New York office of Montgomery McCracken Walker & Rhoads LLP (www.mmwr.com), where he is Vice-Chair of the Litigation Department. Before entering private practice, Mr. Pastore was an officer and Judge Advocate General (JAG) in the U.S. Air Force and a Special Assistant U.S. Attorney with the U.S. Department of Justice. Reach him at (212) 551-7707 or by e-mail at [email protected].