A fast-approaching deadline has the ACLU of Maryland calling for more protections as state police outline how local enforcement agencies will be able to use facial recognition technology.
After years of debate on the use of the technology, which is often deployed as a surveillance tool in police investigations, legislation that put restrictions on facial recognition systems passed this year and was signed by Gov. Wes Moore in April.
The bills, SB182 and HB338, seek to regulate the use and disclosure of facial recognition technology, or FRT, and requires the Maryland State Police to set up a framework that would apply to all jurisdictions.
Maryland’s ACLU has deemed facial recognition inappropriate for law enforcement in any use, calling the technology in the hands of police “dangerous.” Ahead of an Oct. 1 deadline, the union wrote to the Maryland State Police demanding guardrails be put in place for all Marylanders, but specifically for people of color.
“The technology generates higher rates of false matches for Black people, people of color, and women, and we’ve seen multiple wrongful arrests of Black people because police let false matches from the technology taint subsequent witness identifications,” said Nate Freed Wessler, a deputy director with the ACLU’s Speech, Privacy and Technology Project.
What are the requirements of the new law?
FRT can be used by police for investigating “serious” offenses, such as violent crimes, human trafficking, child abuse, hate crimes and weapon crimes, according to the law. It may not be used to identify missing people or enhance security systems.
Results that police obtain from facial recognition or that lead to other evidence cannot be used in criminal or juvenile court proceedings. The results can also never be the only reason for criminal charges or juvenile judgements.
And in court, law enforcement agencies must provide details, including systems used, databases searched, and results obtained, in criminal and juvenile court proceedings.
FRT may not be used as evidence, except to “establish probable cause or positive identification for warrants or preliminary hearings,” the bills say. The results still have to be supported by additional evidence for cause and identification.
State Sen. Charles Sydnor, a Baltimore County Democrat, has been a vocal opponent of the technology and main sponsor of the bill, aimed to ensure that, if passed, it did so with necessary restrictions. In 2017, he tried to institute a moratorium for the technology’s use at the state level, but it never came to pass. He and other lawmakers recognized a need to establish a more robust regulatory framework, he said.
“I looked at what the state had done as more of a floor than a ceiling, and my position has been that if local governments wanted to have more restrictive language on how local governments were using the technology, I had no problem with that,” Sydnor said.
ACLU says more protections needed
Maryland’s ACLU wants the following measures implemented in the framework the Maryland State Police are working on for local law enforcement agencies:
- Police must be prohibited from arresting people based on an FRT result followed by a photo lineup or similar procedure, because even when FRT generates a false match, it will almost always look so much like the actual suspect as to taint the reliability of the photo array.
- Facial recognition technology should not be used for surveillance of live or recorded video.
- Law enforcement agencies should not contract with private FRT matching databases containing non-consensual or illegally collected face prints, including the “abusively created” database from Clearview AI.
Clearview AI founder Hoan Ton-That defended his company’s app after a New York Times investigation revealed in 2020 that Clearview was found to have been working with law enforcement agencies to match photos of unknown faces to people’s images online. “Quite simply, Clearview is basically a search engine for faces,” Ton-That said in media interviews at the time.
It remains unclear which vendor Maryland State Police use to operate their version of the technology. The agency’s communications director, Elena Russo, said they are “committed” to ensuring the policy will reflect the values and expectations of communities and protect the constitutional rights of citizens across the state.
“The Maryland Department of State Police is developing a model statewide policy governing the use of facial recognition technology in compliance with the law,” Russo said. “Once completed the policy will be shared with Maryland state and local law enforcement.”
Concerns with facial recognition tools
In Maryland, at least one case has been identified where FRT led to an unlawful arrest, according to a report last year from Wired. Studies have also previously found that facial recognition software is more likely to misidentify Black and Asian people than white people.
Sydnor said one of his primary concerns with the technology is that it might replicate past issues even as it becomes more sophisticated — specifically, that it would be used to identify people of color, leading to their entanglement in the criminal justice system.
“I’ve heard too many stories that concerned me, but in instances like what happened on Jan. 6 with the Capitol riots, I saw that the technology did have some promise,” Sydnor added.
Baltimore County State’s Attorney Scott Shellenberger, who has previously worked on policies around the use of facial recognition tools, said there’s a need to strike a balance on regulating the technology.
Still, the threat of police using facial recognition remains “chilling,” said Wessler, as law enforcement can engage in pervasive tracking and surveillance.
“Although the best protection against abuse is to stop police from using this technology at all, there are serious steps the Maryland State Police must take now to minimize the room for abuse,” Wessler said in a statement.
In Baltimore, the most populous municipality in Maryland, Councilman Kristerfer Burnett introduced local bills on facial recognition and other forms of surveillance technology in May. They would require both City Council approval and public input before Baltimore Police and other agencies can purchase the technology.
“It is crucial for us as policymakers to address the historical exploitations as well as to be proactive to prevent” exploitation in the future, Burnett previously said.
This story was updated to correct that Baltimore is the most populous municipality in Maryland.
