Florida appeals court to rule on legality of facial recognition procedure in drug case

Mar 13, 2018, 5:01 pm EDT | Chris Burt

Florida’s First District Court of Appeals will soon issue the first ruling ever in the U.S. on the legality of police using facial recognition technology to identify a suspect without notifying them of it, The Florida Times-Union reports.

In September 2015 undercover detectives from the Jacksonville Sheriff’s Office used an intermediary to access a facial biometric system including anyone with a Florida driver’s license run by the Pinellas County Sheriff’s Office. They were looking for the identity of a suspect in a drug deal, who was convicted in May 2016, and is now appealing his conviction.

Appellate judges will consider whether the state is required to turn over other photos matched by the facial recognition software, and whether the identification process met legal standards, among other issues.

The defendant’s attorneys are arguing that prosecutors were required to turn over the photos of the four other potential suspects identified by the system, as they are evidence that might exonerate him. The arrest report indicated that he had been identified by a mugshot system, which is only partially accurate, the Times-Union reports, and prosecutors did not proactively disclose the method of his identification.

Prosecutors argue that because only one of the matching photographs was received by the detectives, the other photos played no role, and therefore do not qualify as “Brady material” which they are obligated to share.

The defense also argues that because the crime analyst using the software was presented with only photos of the defendant, without the safeguard provided by a double-blind lineup or other procedures, the process was overly suggestive. Prosecutors countered that the totality of evidence, which included multiple photographs of the suspect during the drug deal, outweighed the suggestiveness of the process.

Clare Garvie, a Law Fellow at Georgetown University’s Center on Privacy & Technology, called the argument that the other matched photos were not exculpatory “a huge red flag,” the Times-Union reports, and said that it shows the frontier nature of law related to facial recognition. She was also unconvinced by the argument that the process was not suggestive, as the crime analyst who identified the defendant had limited understanding of the algorithm used for matching, and had little to go on aside from the images provided of the defendant.

The court’s decision may take several months.

The Center on Privacy & Technology also recently criticized the Department of Homeland Security’s biometric exit program, in part on the grounds that it has high error rates, particularly for people from certain demographics.