Know Your Rights! Police Stops

A know-your-rights guide to navigating police stops.

Your “face print”: facial recognition technology, law enforcement and you

The issue of citizens filming police, particularly in instances of misconduct, has been increasingly before the public eye for the past two years. Cases such as founder Adam ‘Ademo’ Mueller, whose trial for “wiretapping” (read: filming a cop and posting the recordings online) began this past week in New Hampshire, seem all-too-chillingly-common lately.

But the reverse case, when police and law enforcement are the ones capturing the photo and video, also has many privacy advocates concerned. All the more concerning is the pairing of surveillance photography and videotaping with face-recognition technology, where many privacy advocates suggest that the law has not caught up with the tech capabilities of law enforcement or private corporations.

On July 18, Senator Al Franken headed a Senate Judiciary Committee hearing on “What Facial Recognition Technology Means for Privacy and Civil Liberties.” In attendance were legal experts on technology, privacy and law enforcement, as well as some private industry representatives such as Facebook’s privacy chief, Rob Sherman.

To be clear, we’re talking about technology that is able to identify and tag photos on an individual level based on biometric characteristics such as nose bridge width and distance between eyes. This is known as developing an individually-identifiable “face print” akin to finger prints or other individual markers.

Jennifer Lynch, attorney with the Electronic Frontier Foundation, offered enlightening testimony before the hearing. Lynch illuminated the extent of facial recognition technology already in use:

Although the collection of biometrics—including face recognition-ready photographs—seems like science fiction; it is already a well-established part of our lives in the United States. The Federal Bureau of Investigation (FBI) and Department of Homeland Security (DHS) each have the largest biometrics databases in the world, and both agencies are working to add extensive facial recognition capabilities. The FBI has partnered with several states to collect face recognition-ready photographs of all suspects arrested and booked, and, in December 2011, DHS signed a $71 million dollar contract with Accenture to incorporate facial recognition and allow real-time biometrics sharing with the Department of Justice (DOJ) and Department of Defense (DOD). State and local lawenforcement agencies are also adopting and expanding their own biometrics databases to incorporate face recognition, and are using handheld mobile devices to allow biometrics collection in “the field.”

Lynch emphasizes that private industry has equalled if not exceeded law enforcement in deploying face recognition tech:

The scope of government-driven biometrics data collection is well-matched by privatesector collection. Facebook, which uses face recognition by default to scan all photos uploaded to its site, states that its users uploaded more than 300 million photos every day in the three months ending on March 31, 2012. And, which developed Facebook’s face recognition tools and was recently acquired by the company, stated in March that it had indexed 31 billion face images. Other companies, from large technology companies like Google and Apple to small smartphone app providers, also provide face recognition products to their customers, and private companies are using biometric identification for everything from preventing unauthorized access to computers and corporate facilities to preventing unauthorized access to the gym.

Lynch sees stark privacy issues inherent in such widespread face recognition technology:

Biometrics in general are immutable, readily accessible, individuating and can be highly prejudicial. Face recognition, though, takes the risks inherent in other biometrics to a new level because Americans cannot take precautions to prevent the collection of their image.

Face recognition allows for covert, remote and mass capture and identification of images—and the photos that may end up in a database include not just a person’s face but also how she is dressed and possibly whom she is with. This creates threats to free association and free expression not evident in other biometrics.

Given this vast potential for misuse and overcollection, Lynch echoes other privacy advocates in calling for privacy legislation to head off abuses. While invoking wiretap laws may cause many to bristle given their misuse of late, we must recall the original purpose of wiretapping and recording statutes were to protect the public.

The Electronic Privacy Information Center, which has also lobbied Congress extensively around privacy and facial recognition, joins EFF in calling for privacy legislation. In testimony submitted to the Federal Trade Commission, EPIC suggested a moratorium on facial recognition technology by the private sector until appropriate safeguards can be put in place. Given the proliferating use of these technologies and the vast potential for oversharing of personally identifiable data and biometrics for all manner of shady purposes, this seems not only appropriate but critical to protecting citizens’ privacy and dignity.

UPDATE: Mass. House rejects Patrick’s judicial safety valve amendment

In a 132-23 vote, the Massachusetts House of Representatives has overwhelmingly  voted to reject Governor Deval Patrick’s proposed amendments to the omnibus crime bill (H.3818). The Senate has yet to consider the amendments.

House Speaker DeLeo suggested on Monday that there was enough legislative support behind the bill as written to override a veto should the Governor do so with ample time to hold a vote. The legislative session ends July 31.

Specifically, the rejected amendment would establish a judicial safety valve for granting parole eligibility to third-strike offenders who serve at least two-thirds of their max sentence (or 25 years of a life sentence) when the judge determines that to do so would be “in the interest of justice” in light of “substantial and compelling reasons.”

Three-strikes news: Mass. Governor Patrick returns sentencing bill to legislature

Last Saturday, Massachusetts Governor Deval Patrick returned an omnibus crime bill (H.3818) to the state legislature with a request for an additional “safety valve” amendment. In a letter to the legislators, Governor Patrick expressed support for the bill’s three-strikes provisions for “habitual offenders” convicted of violent crimes, but called for the addition of “limited judicial discretion” to allow parole eligibility in light of the particulars of individual cases.

Patrick explained the reasoning behind his amendment so late in the legislative session, writing,

None of us is wise or prescient enough to foresee each and every circumstance in which the new habitual offender provisions may apply. The sentencing judge, who has observed all the witnesses and the defendant, heard all the evidence, and considered and ruled upon all the arguments throughout the course of the trial, is in the best position to appreciate all the facts. He or she should have some limited discretion, as judges in other states do, to allow parole eligibility after a period of time served.

Specifically, the amendment establishes a judicial safety valve for granting parole eligibility to third-strike offenders who serve at least two-thirds of their max sentence (or 25 years of a life sentence) when the judge determines that to do so would be “in the interest of justice” in light of “substantial and compelling reasons.”

Patrick indicated that his proposed amendment followed concerns by Massachusetts Supreme Judicial Court Chief Justice Roderick L. Ireland over lack of judicial discretion in the three-strikes provisions. Chief Justice Ireland submitted a letter to the Governor’s office on July 26 outlining these concerns.

While Massachusetts House Speaker Robert DeLeo has suggested that Patrick’s amendment would “gut” the bill, Families Against Mandatory Minimums (FAMM), a national advocacy coalition that calls for individualized sentencing, praised the Governor’s position. FAMM Massachusetts director Barbara J. Dougan lauded the amendment’s inclusion of judicial discretion, writing that “one-size-fits-all sentences of any kind will always result in unfair sentences for some.”

The Massachusetts legislature is expected to consider the proposed amendments on Monday, July 30.

The Supreme Court’s Huge Ruling Regarding Plea Bargains

In what’s being called the biggest decision from the Supreme Court in decades, the justices ruled this past week that criminal defendants are entitled to effective assistance of counsel during the plea bargaining stages of a case. The right to effective assistance already exists at trial, but the fact is few cases ever go to trial in the current criminal justice system. [Read more…]

Drunk Driving Penalties Vary Widely From State to State

If you are caught drunk driving in Alaska you could face a vastly different penalty than if you are charged with DUI in Indiana. A new article in USA Today looks at just how differently drunk drivers are penalized from state to state and even county to county. Some states require jail time for a first offense DWI and one state doesn’t even consider a first offense DWI to be a crime. [Read more…]

Stalking by Cellphone

A fascinating and scary article in the Wall Street Journal about how apparently easy it is to stalk someone by their cellphone GPS system. [Read more…]

New Court Evidence Ruling Coming Soon

Only a year after the Supreme Court’s controversial Melendez-Diaz decision, court watchers are awaiting possible revisions to that decision. [Read more…]

Auto Thefts Most Common in West

A recent report from the National Insurance Crime Bureau reveals that the American West has the highest auto theft rates in the nation, this despite the national rates of car theft declining over the last 6 years. [Read more…]

Mass Court Limits Use Of Melendez-Diaz in OUI Case

The Massachusetts Supreme Court rejected a challenge to blood evidence in an OUI case on grounds of violation of the confrontation clause and the Melendez-Diaz case.

As reported in Mass Lawyer’s Weekly, a blood test taken at a hospital, and submitted as evidence of intoxication in a drunk driving case, could be used without additional expert testimony.

The Melendez-Diaz case changed the rules on scientific evidence as presented in court. Previous to the case, scientific and forensic evidence, such as illegal drug identification reports in drug cases, and some breathalyzer information in DUI cases, could be presented as documentary evidence, and used in court. But after Melendez-Diaz, the court determined that this evidence alone was not sufficient, and that the defense had a right to confront and challenge the evidence. Therefore, an expert witness must be available to defend the documented evidence in court.

The Massachusetts justice determined that since the blood was drawn as part of a medical procedure, and not purely and purposefully as evidence in a criminal case, the rules as established in Melendez-Diaz do not apply.