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State cites tighter use of facial recognition, but civil libertarians want more guarantees

By Mark Shenefelt standard-Examiner - | Sep 15, 2020

A top state official said Tuesday the Utah Department of Public Safety is tightening procedures in its controversial facial recognition system, but civil liberties groups asked that specific safeguards be laid out in the law.

Brian Redd, chief of the State Bureau of Investigation, told a legislative committee the agency has beefed up its policies to more tightly regulate the system, which includes photos used for driver’s licenses, as well as those of state prisoners and some county jail inmates.

“No one has access to our driver’s license database,” Redd said, although publicity about how federal and state law enforcement agencies can request checks in the system has caused DPS to respond to the scrutiny.

“We’re doing checks for Homeland Security investigations — criminal, not immigration,” he said.

Redd said DPS and representatives of the American Civil Liberties Union of Utah and the Libertas Institute reached some compromises on legislation last winter to regulate the system.

“But there were concerns from the police chiefs and the sheriffs and the Attorney General’s Office, who wanted to make sure in the future they could use this technology,” Redd said. “So the bill did not come forward again.”

Redd’s presentation came during a virtual hearing of the Legislature’s Law Enforcement and Criminal Justice Interim Committee.

He said DPS continued working on the issue and has made some changes this year in the absence of a legislative mandate.

Previously, the bureau would send a law enforcement agency multiple possible matching photos. Now, only a single match is provided, Redd said.

Now, all uses of the system are tracked and audited and users are warned of criminal penalties for misusing it.

A police department submitting a photo to look for a match in the system must file a statement demonstrating the need for the check and it must have supervisor approval.

“When we provide a result back, we send a disclosure indicating that this result cannot be used for probable cause,” he said. “It is a lead only. It has to be taken in the totality of the case.”

The bureau now requires formal training on the system as well as bias training, Redd said.

It’s not just with the facial recognition database, he said. Training on racial and ethnic biases is required in all areas of DPS.

Facial recognition is inherently a matter of probabilities, he said. “You’ll never get to 100%. It’s mathematically impossible to prove the accuracy of a face.”

The bureau receives about 40 requests a month for database checks, he said, covering all crime types.

Sen. Daniel Thatcher, R-West Valley City, bridled at claims that “no one knew” about the state’s use of facial recognition.

He and Redd said the technology has been used here since 2011.

“Some great cases have been solved,” Redd said.

Connor Boyack, president of the Libertas Institute, said the state’s improvements are welcome.

“But we would still want to see them codified in law,” Boyack said.

“This was being used without anyone being aware of it, except for a few people in the know,” Boyack said. “It’s important to put some guardrails in the law to make sure how all of this works.”

The driver’s license database has juveniles’ photos, he noted, another concern.

“This is a very different beast,” he said. “There is no implied consent in the law. The government has seen fit to access that data without explicitly obtaining consent or it being in statute.”

Marina Lowe of the ACLU cited research that shows facial recognition processes have a high degree of problematic results for non-white people.

“We continue to have deep concerns about these algorithms,” Lowe said.

Thatcher said all the facial recognition algorithms do is “put pictures on a screen in front of a living human being.”

“It takes a human person to positively identify a photo,” he said. “It is not nearly as dire as it is being made out to be.”

Further legislation is expected in the 2021 legislative session.


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