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On facial recognition technology, can we regulate our way to safety?

What you’ll read today

  • Spotlight: On facial recognition technology, can we regulate our way to safety?

  • Suffolk County D.A. Rachael Rollins’s office is still prosecuting cases she pledged to drop

  • How a no-knock raid in Austin turned into a lethal shootout

  • Justice in America Episode 14: Judicial Elections

  • Why do we ask for prosecutorial input in parole hearings?

  • Lawsuit challenges the federal judiciary’s exorbitant paywall for access to its court filings

  • St. Louis prosecutor opens office’s data for collection and demonstrates progress

In the Spotlight

On facial recognition technology, can we regulate our way to safety?

The idea of facial recognition technology puts many people on edge, even those who aren’t ordinarily privacy hawks. One reason is its inaccuracy, especially for people who are not white men, making it a dangerous tool to use in law enforcement. But even if it were perfectly accurate, facial recognition could still be used to violate people’s rights. Last year, a Daily Beast investigation found that Amazon was actively pitching its face surveillance platform to ICE, to help them crack down on migrant communities. An Intercept investigation found that IBM, as part of a long-term partnership with the New York Police Department, developed the ability to determine the ethnicity of faces, a technology that was then tested in public surveillance cameras without alerting city residents. In Britain, the Metropolitan Police uses face recognition to scan crowds for people on watch lists, and China uses it for mass surveillance, including to track dissidents. [Karen Hao / The Algorithm from MIT Technology Review] The private sector, too, is using these technologies to track customers’ shopping habits, including breakdowns of gender, race, and mood.

The dangers are clear, but the solutions are not: The past few months have seen attempts to stop the march toward facial recognition ubiquity on the part of some tech giants and some governments, and the only thing that seems clear is that cooperation from both groups will be necessary to protect the public.

On the industry side, Google recently agreed to hold off on releasing facial recognition technology to demonstrate its commitment to the responsible use of artificial intelligence. “Unlike some other companies, Google Cloud has chosen not to offer general-purpose facial recognition APIs before working through important technology and policy questions,” said Kent Walker, Google’s senior vice president of global affairs. The “other companies” he mentions may have included Amazon, which is facing pushback from employees and, recently, shareholders for trying to profit from its Rekognition technology. “We provide our Rekognition service to a variety of government agencies, and we think that the federal government should have access to the best available technology,” Brian Huseman, Amazon’s vice president for public policy, told the New York City Council. The company also recently filed a patent application that seeks to combine its Ring doorbell technology with facial recognition, allowing users to add faces to a list of “suspicious” people and send it directly to law enforcement. [Levi Sumagaysay / San Jose Mercury News]

Around the same time, Microsoft’s president, Brad Smith, released a statement urging governments “to start adopting laws to regulate this technology. The facial recognition genie, so to speak, is just emerging from the bottle. Unless we act, we risk waking up five years from now to find that facial recognition services have spread in ways that exacerbate societal issues. By that time, these challenges will be much more difficult to bottle back up.” Smith feared “a commercial race to the bottom, with tech companies forced to choose between social responsibility and market success. We believe that the only way to protect against this race to the bottom is to build a floor of responsibility that supports healthy market competition. And a solid floor requires that we ensure that this technology, and the organizations that develop and use it, are governed by the rule of law.” [Brad Smith / Microsoft]

Now, a San Francisco lawmaker is proposing the first complete moratorium on local government use of facial recognition technology. The Stop Secret Surveillance Ordinance, introduced by city Supervisor Aaron Peskin, “would ban all city departments from using facial recognition technology and require board approval before departments purchase new surveillance devices,” writes Sidney Fussell for The Atlantic. Berkeley and Oakland have passed similar rules that require public input and a privacy policy before implementing new face recognition technology, and Texas and Illinois require consent before collecting facial data, but nowhere in the country has an outright ban. Bans have been proposed in Washington State and Massachusetts, but have not yet been ratified. [Sidney Fussell / The Atlantic]

The proposal also bars city officials from using any data sourced from facial recognition by other agencies. If police in a neighboring city wanted to share a list of suspects derived from facial recognition, the San Francisco Police Department would be prohibited from using it. More broadly, the ordinance stipulates that any department that wants to purchase new surveillance equipment of any kind must justify this act by submitting a “surveillance technology policy” that explains “what information will be collected with the technology, how long it will be retained, with whom it can be shared, how members of the public can register complaints, and specified authorized and forbidden uses.” Every year, departments would have to justify its helpfulness in crime reduction. [Sidney Fussell / The Atlantic]

But the bill would regulate only use by city government, not private companies: The face-unlock feature included on the latest iPhone model, for example, would still be legal. The San Francisco Police Department would be barred from using facial recognition software to scan video footage for suspects after a shooting, but a grocery store would be permitted to do the same thing to analyze shopper behavior. [Sidney Fussell / The Atlantic] The limits of San Francisco’s ordinance, and the limits of industry self-regulation underscore the need for industry and government to work together on behalf of the greater good. As of now, even with mounting pressure, it seems most are working on behalf of their own good.

Stories From The Appeal


Rachael Rollins swearing in as district attorney on Jan. 2, 2019. [Boston Mayor’s Office Photo by John Wilcox]

Suffolk County D.A. Rachael Rollins’s Office Is Still Prosecuting Cases She Pledged to Drop. Boston’s top prosecutor says big changes are in the works; advocates plan to keep pushing. [Emma Whitford]

How a No-Knock Raid in Austin Turned Into a Lethal Shootout. ‘There were explosions everywhere … I had no idea who was in the house.’ [Jessica Pishko]

Justice in America Episode 14: Judicial Elections. Josie and Clint look at a topic that doesn’t get a lot of attention: the relationship between judges, corporate money, big business interests, and mass incarceration. [Josie Duffy Rice and Clint Smith]

Stories From Around the Country

Why do we ask for prosecutorial input in parole hearings? In a forthcoming article titled “Undue Influence: A Prosecutor’s Role in Parole Proceedings,” Professor R. Michael Cassidy argues that prosecutors should ordinarily not testify at parole hearings, and should submit written comments to the parole board only in a rare situation where they have unique and pertinent information about a prisoner’s post-conviction behavior. Usually, prosecutors show up to parole hearings simply to oppose release. The blog Prosecutorial Accountability argues: “Parole boards should stop relying upon the views of prosecutors for the same reasons that legislatures should: (1) no matter what they claim, prosecutors are almost never experts on the issues that boards and legislatures confront; (2) prosecutors historically care about maintaining their power above all else, just like any special interest group; and (3) simply put, it is not their job.” Prosecutors “are not experts on corrections, rehabilitation, and an individual’s prospects for a safe and productive reintegration. Social workers, correctional officials, sociologists, psychologists, members of the community—so many other people have so much more to contribute.” Even tough-on-crime prosecutors admit that often, they are “basically guessing.” [Prosecutorial Accountability]

Lawsuit challenges the federal judiciary’s exorbitant paywall for access to its court filings: Public Access to Court Electronic Records (Pacer), the online system, charges “a preposterous 10 cents a page for electronic access to what are meant to be public records,” even though the “costs of storing and transmitting data have plunged, approaching zero,” writes Adam Liptak for the New York Times. The National Veterans Legal Services Program and two other nonprofit groups filed a class action, claiming that Pacer’s fees “inhibit public understanding of the courts and thwart equal access to justice, erecting a financial barrier that many ordinary citizens are unable to clear,” they wrote. A 2002 law allows—but does not require—the judiciary to charge for access to records, but “only to the extent necessary” to pay for “services rendered.” The lawsuit says Pacer far exceeds that amount. Former federal Judge Shira A. Scheindlin signed a supporting brief, noting the fees were “particularly harmful to litigants who represent themselves, to academic researchers who want to explore systemic issues like sentencing disparities, and to journalists at smaller news outlets,” writes Liptak. [Adam Liptak / New York Times]

St. Louis prosecutor opens office’s data for collection and demonstrates progress: The prosecutor of St. Louis, Kimberly Gardner, is increasing the cases she declines to prosecute and the number of summonses she issues, instead of arrest warrants, according to a report her office issued last week. The report was released in conjunction with the Vera Institute of Justice. “Gardner said she began making changes when she took office two years ago aimed at reforming a ‘heavy-handed’ criminal justice system that has ‘played a significant role in destabilizing families, neighborhoods and communities,’” writes Robert Patrick for the St. Louis Post-Dispatch. She noted that high arrest and incarceration rates were not making the community safer, and that she would reserve jail for those “who are truly a danger to our community.” Jamila Hodge, director of Vera’s prosecutor reform program, said it was rare for a prosecutor to open his or her office’s data for inspection. [Robert Patrick / St. Louis Post-Dispatch]

Thanks for reading. We’ll see you tomorrow.

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