The Maryland State Police’s model policy serves as a template policy for police departments, but individual agencies can add additional requirements or choose not to use the technology at all.
“A law enforcement agency may not use or contract for the use of facial recognition technology for use in criminal investigations unless the use is in accordance with the model statewide policy,” said Elena Russo, a state police spokesperson, in an email Wednesday to The Baltimore Sun.
Essentially, the model policy functions as a “floor” rather than a “ceiling,” according to Sen. Charles Sydnor, a Baltimore County Democrat who co-sponsored the law limiting the use of facial recognition.
“If Baltimore wants to be more restrictive, then Baltimore should have the right to be more restrictive,” Sydnor said. “We’re talking about a technology that still has some major concerns.”
For example, the Montgomery County Police Department’s facial recognition technology policy includes some stricter rules for the use of the tool. In the past, Baltimore city leaders also have weighed the use of facial recognition.
“When creating a photo array, personnel may not utilize as a suspect image the same image that resulted from the use of facial recognition technology,” the policy for Montgomery County Police states.
That means if investigators there use facial recognition to match a suspect to a photo found in Maryland’s database of driver’s license photos, they must choose a different one to show to a witness in a photo array.
“We don’t treat facial recognition as a forensic science. It’s not DNA or fingerprints. It’s a tool that allows us to get leads but the important thing is, I can’t stress that enough, we’re not making arrests based solely on facial recognition leads,” said Montgomery Police Capt. Nicholas Picerno.
Not only can facial recognition be used to help identify suspects in a crime, but, Picerno said, it can be used as his department did to exonerate someone that community members had incorrectly identified in a suspect photo, in a case where a cyclist later pleaded guilty to assaulting people putting up Black Lives Matter flyers along a trail. Facial recognition also can help police identify victims and witnesses, or identify someone in medical distress in order to find their family members, he said.
“There’s an expectation that if we have a tool at our disposal, we would use it in a regulated and informed way,” Picerno said. “This is going to make sure everyone’s operating under the same rules statewide.”
The ACLU of Maryland sent a letter to state police in August asking for three “baseline protections” in the state policy, citing the risks of eroding privacy and wrongful arrests stemming from the use of facial recognition technology.
The policy released late Tuesday did not clarify that a “lineup” created with facial recognition would not count as the independent evidence police require for probable cause or positive identification, as the ACLU requested, nor did it prohibit the use of facial recognition technology for identifying or tracking people in recorded video footage.
“The Maryland State Police completely missed an opportunity here to make Maryland a leader in the country in protecting against abuse in this technology,” said Nate Freed Wessler, the deputy director of the ACLU’s Speech, Privacy and Technology Project and co-author of the letter.
Wessler said state police wrote a “book report on state law” without adding clarifications that would help officers understand how to avoid misusing the technology, and pointed instead to a policy the city of Detroit adopted after a wrongful arrest lawsuit.
However, Wessler felt that the third protection the ACLU requested — prohibiting agencies from contracting with companies that used facial recognition databases of images collected without individuals’ consent — saw a “useful clarification” in a section of the policy that says, “authorized users shall only utilize databases or systems for facial recognition searches that comply with Maryland law.”
In Wessler’s view, this could address advocate concerns’ that police departments might contract with the facial recognition company Clearview AI.
Under the state law, Maryland law enforcement agencies can use images from mugshot databases, the Maryland Motor Vehicle Administration and other facial recognition databases from vendors that enter into agreements with police departments.
Wessler said that Clearview AI’s business practices appear to violate a different Maryland law, the Maryland Online Data Protection Act, that goes into effect next October and aims to protect consumer privacy. Clearview AI has settled two different lawsuits in Illinois related to its use of images collected online, including from social media sites.
“Clearview only collects and searches publicly available online photos, for the purpose of facilitating law enforcement investigations, which is fully compliant with Maryland law,” said Jack Mulcaire, Clearview AI’s chief legal officer, in a statement to The Sun.
The company did not answer a question about whether any Maryland law enforcement agencies currently use its services.
Many privacy advocates and civil liberties groups favor total bans on the law enforcement use of facial recognition technology.
Adam Schwartz, the Electronic Frontier Foundation’s privacy litigation director, said if a state doesn’t ban the police use of facial recognition, the law should at least require investigators to get a warrant from a judge.
Maryland’s facial recognition law was the result of a compromise reached between advocates, law enforcement agencies and industry groups this year.
Jake Parker, senior director of government relations at the Security Industry Association, said the state police’s model policy mostly includes the law’s requirements, but packaged in a “more understandable format.”
“This really is significant, and this is the most comprehensive law in facial recognition used by law enforcement in the country,” Parker said.
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