Attorneys, digital rights advocates want facial recognition process open to discovery in court
Two digital rights groups and a defendants’ rights association are arguing in a New Jersey court that evidence discovery in a criminal case should include the defense’s ability to see aspects of facial recognition systems and policies used to identify a defendant.
In New Jersey v. Arteaga, Francisco Arteaga is accused of a 2019 armed robbery in that state, although he maintains he was dozens of miles away from the crime scene when it occurred.
A New Jersey district court judge has rejected the idea that the discovery process of the trial should include detailed investigation of the technology and human interventions involved in the facial recognition process used.
An amicus brief in support of a full discovery process has been filed by the Electronic Privacy Information Center, or EPIC; the Electronic Frontier Foundation and the National Association of Criminal Defense Lawyers.
The question is before an appellate court judge. Unlike other technological tools used in crime investigations, it is not possible to examine a standard matching process, the groups say.
Every step of a biometric process in the wild is nuanced up to and including the judgment of individual humans reviewing an algorithm’s decision. A thorough discovery process is required of this instance (and, presumably, every instance). As these kinds of cases grow in number, this is going to be an issue again.
The three organizations have pointed out the shortcomings and limitations that have been documented on facial recognition AI algorithms as a prime reason why defendants should have the same digital rights of discovery that are afforded to them in instances of conventional, physical evidence.
Defense attorneys want a “detailed discovery on the facial recognition systems used by the NYPD to identify [the defendant], the original photo and any edits” that the officials may have made prior to submitting the image for matching, according to a news announcement by EPIC. The defendant’s attorneys also want information on the system analyst involved in the matching.
In the original New Jersey police investigation, reportedly no matches were turned up when the New Jersey’s Regional Operations Intelligence Center performed an initial facial recognition search using a video frame of a suspect caught on CCTV. New York Police Department staff, asked to aid in the case, used their agency’s facial recognition software and told New Jersey officers that Arteaga was a match.
The NYPD’s Facial ID Section of the Real Time Crime Center compares submitted images against mugshots going back to 1996, desk appearance tickets and pistol license applications, according to EPIC.