Imagine that you demonstrated peacefully for an important cause last weekend. This weekend, officers knock on your door at 6 a.m. with a warrant charging you with physically assaulting someone at the rally. The reason you are charged: an anonymous tip and facial recognition software, but you may never know.
Your efforts to find out how you were mistakenly identified are stymied at every turn with claims of trade secret. But even if you manage to prove that there was no assault, the damage is done. Maybe you spend days, weeks or months in jail before you can prove your innocence. Either way, your life has been turned upside down by an arrest and you never feel safe protesting again.
This scenario is not merely hypothetical. Facial recognition technology has led to fake arrests, including here in New Jersey. The Attorney General is currently seeking comment on the use of facial technology by law enforcement.
the portal that he has set up for this commentary involves long, nuanced, multi-pronged questions about how and when law enforcement should be able to use this technology. We welcome the Attorney General’s acknowledgment of the risks associated with the proliferation of facial recognition, but to his questions we offer a very simple answer: ban it.
We are a coalition of organizations dedicated to preserving privacy, civil liberties and the rule of law. And our experience with facial recognition and other forensic technologies reveals a simple truth: No nuanced regulation can contain a technology so invasive and so ripe for abuse.
There is no evidence that there is a problem that we need facial recognition to solve. But we have evidence for a few fundamental truths.
First, the people who benefit from these systems are the private companies who make huge profits without revealing the secrets of how the software works. Technologies like ShotSpotter that make big promises to stop crime and ultimately fail to deliver on their promises, but only after costing municipalities lucrative contractsto the private prisons, dens of exploitation of abuse that our Governor wisely opposes, private criminal justice actors is bad news. By emphasizing their bottom line and opposing even the most basic review, these private companies are undemocratic, blocking reasonable attempts to monitor their technology, and posing a danger to us all.
And facial recognition companies are rake it. Companies looking to profit from our communities are not going to protect them when their tools fail. This is of particular concern given that facial recognition tools used in law enforcement scenarios are often much less precise than the facial recognition used to unlock your phone, for example.
Second, facial recognition systems only work in conjunction with surveillance systems which together will disrupt privacy in public spaces. The ability to identify people in public spaces is a direct threat to our privacy and First Amendment rights. While the portal insists the systems would only be used for criminal investigation purposes, we have already seen it used to criminalize protests. The NYPD used facial recognition to identify a Black Lives Matter protester accused of assault.
The charges against the protester were finally abandoned, but the damage this surveillance has done to him and to those who were afraid to protest because of this surveillance has already been done. The facial recognition system will know who is present at protests, from Black Lives Matter to an anti-vaccine rally.
He will know who visits an abortion provider and will know who visits a mosque. And who the criminal is will depend on the perceptions and agenda of those who operate the systems and the political winds. These technologies will not catch the billionaire tax evader or the salary-stealing business owner, but rather target individuals based on prosecution priorities. This is a risk our privacy and civil liberties cannot take.
Finally, over-policed communities, which are disproportionately black and brown, will bear the brunt of the increased surveillance and criminalization that comes with the implementation of these systems. The use of this invasive technology will disproportionately harm communities of color, just as all other tools of the criminal justice system do.
We all know that New Jersey leads the nation in racial disparities in its prison population. We all know that black and brown communities have been continually subjected to illegal police tactics, such as stops and searches for no reason so rampant that New Jersey’s largest police force is under a consent decree, with federal officials overseeing it to ensure constitutional violations end. And we know full well that facial recognition systems are worse at recognizing dark-skinned peopleresulting in a disproportionate number of false positive identifications.
But beyond that, the databases themselves are often biased, including more black and brown people in them. Thus, already over-policed communities will be subject to greater use of this invasive technology, including more false identifications. That’s not the direction New Jersey should be heading in 2022.
To all this we say: no. Let’s not open this Pandora’s box and rely on the 550 law enforcement agencies of this state, whose members are notorious for pushing back transparencyto follow the detailed limits.
Let’s not let our privacy hang in the balance. Let’s not let the defendants fight in court to get even the most minimal information about these systems. Join other municipalities across the country—like Boston, Minneapolis, San Franciscoand Vermont – who have banned the use of facial recognition technology by law enforcement. Let’s keep our communities safe and retain the privacy and assembly rights that we are so proud of as Americans.
American Civil Liberties Union – New Jersey
New Jersey Criminal Defense Lawyers Association
Black Lives Matter Elizabeth
Black Lives Matter Paterson
Privacy and Technology Center at Georgetown Law
The Gem Project
Latin Action Network
National Association of Criminal Defense Lawyers
New Jersey Alliance for Immigrant Justice
New Jersey Institute for Social Justice
New Jersey Office of the Public Defender
New Jersey Political Perspective
Our New Jersey Revolution
salvation and social justice
South Burlington County NAACP
Surveillance Technology Oversight Project (STOP)
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