The best disinfectant
This post was co-written with Clare Garvie, Senior Associate at the Center on Privacy & Technology.
Last week, The New York Times published a front-page article detailing the NYPD’s practice of enrolling thousands of juvenile arrest photos into its face recognition system. Last month, The Washington Post published an exposé revealing that ICE has requested face recognition searches on three states’ driver’s license databases that include information collected from undocumented immigrants.
Both revelations drew condemnation of the practices from across civil society and the political spectrum, including from local NYC Councilmembers Donovan Richards and Brad Lander, Democratic Representative Pramila Jayapal, Republican Representative Jim Jordan, and presidential hopeful Beto O’Rourke. Both were also based on the Center’s research into the unregulated use of face recognition across the United States.
How did we uncover this important information? By using one of the most critical tools the American public has for holding the government accountable: public records requests. In the U.S., the Freedom of Information Act (FOIA) allows the public to request documents from the federal government related to non-confidential government work. All fifty states have freedom of information laws governing requests for state documents.
FOIA legislation is intended “to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” Since 1966, FOIA and similar state laws have helped uncover FBI surveillance of black writers, proof that Nazi war criminals were collecting Social Security even after fleeing the US, and countless other scandals. And they are crucial to the investigative work we do at the Center examining the risks to privacy, civil rights, and civil liberties posed by new surveillance technologies.
Over the past four years, the Center has filed hundreds of records requests with law enforcement and other agencies across the country. We have received tens of thousands of pages in return, detailing the scope of face recognition use and the controls — or lack thereof — in place to rein in this new technology. These documents have told us that over half of all American adults are enrolled in a face recognition database used for criminal investigations, thanks to getting a driver’s license or state ID card. They show that some systems are searched thousands of times per month, and in many jurisdictions officers do not need any degree of suspicion to run a search.
But the public’s right to information is under fire. Recently, the Supreme Court ruled that the exemption for “confidential” records could be broadly interpreted to mean material provided by commercial entities to the government, even if this disclosure would not hurt the business. As the government increasingly partners with and outsources vital processes to the private sector, this change could prevent the public from learning about new technologies the government is deploying. It’s possible that in the future the government may be so opaque that we are unable to uncover how it uses face recognition technology.
The public’s ability to request and receive records is essential to transparent and accountable government. If you would like to make a FOIA request, see instructions here. For resources on state freedom of information laws, check out the National Freedom of Information Coalition. For a library of records requests, as well as news and additional resources, check out MuckRock. For detailed information on FOIA, check out the FOIA Wiki.
Jameson Spivack is a policy associate with the Center on Privacy & Technology, and can be found on twitter at @spivackjameson. Clare Garvie is a senior associate at the Center, and can be found at @ClareAngelyn.
