Privacy Group Wins Court Ruling Against FBI’s Facial-Recognition Technology

Transparency organizations are serving the public interest when seeking information about the government’s collection and use of biometric data, a federal judge said.

A 3D facial recognition program is demonstrated during the Biometrics 2004 exhibition and conference October 14, 2004 in London.
National Journal
Nov. 6, 2014, 10:12 a.m.

A fed­er­al judge has ruled that the FBI’s fu­tur­ist­ic fa­cial-re­cog­ni­tion data­base is de­serving of scru­tiny from open-gov­ern­ment ad­voc­ates be­cause of the size and scope of the sur­veil­lance tech­no­logy.

U.S. Dis­trict Judge Tan­ya Chutkan said the bur­eau’s Next Gen­er­a­tion Iden­ti­fic­a­tion pro­gram rep­res­ents a “sig­ni­fic­ant pub­lic in­terest” due to con­cerns re­gard­ing its po­ten­tial im­pact on pri­vacy rights and should be sub­ject to rig­or­ous trans­par­ency over­sight.

“There can be little dis­pute that the gen­er­al pub­lic has a genu­ine, tan­gible in­terest in a sys­tem de­signed to store and ma­nip­u­late sig­ni­fic­ant quant­it­ies of its own bio­met­ric data, par­tic­u­larly giv­en the great num­bers of people from whom such data will be gathered,” Chutkan wrote in an opin­ion re­leased late Wed­nes­day.

Her rul­ing val­id­ated a Free­dom of In­form­a­tion Act law­suit filed by the Elec­tron­ic Pri­vacy In­form­a­tion Cen­ter that last year made a 2010 gov­ern­ment re­port on the data­base pub­lic and awar­ded the group nearly $20,000 in at­tor­neys’ fees. That gov­ern­ment re­port re­vealed the FBI’s fa­cial-re­cog­ni­tion tech­no­logy could fail up to 20 per­cent of the time. Pri­vacy groups be­lieve that fail­ure rate may be even high­er, as a search can be con­sidered suc­cess­ful if the cor­rect sus­pect is lis­ted with­in the top 50 can­did­ates.

“The opin­ion strongly sup­ports the work of open-gov­ern­ment or­gan­iz­a­tions and val­id­ates their fo­cus on try­ing to in­form the pub­lic about gov­ern­ment sur­veil­lance pro­grams,” said Jeram­ie Scott, na­tion­al se­cur­ity coun­sel with EPIC.

Pri­vacy groups, in­clud­ing EPIC, have long as­sailed Next Gen­er­a­tion Iden­ti­fic­a­tion, which they ar­gue could be used as an in­vas­ive means of track­ing that col­lects im­ages of people sus­pec­ted of no wrong­do­ing. The pro­gram—a bio­met­ric data­base that in­cludes iris scans and palm prints along with fa­cial re­cog­ni­tion—be­came “fully op­er­a­tion­al” this sum­mer, des­pite not un­der­go­ing an in­tern­al re­view, known as a Pri­vacy Im­pact As­sess­ment, since 2008. Gov­ern­ment of­fi­cials have re­peatedly pledged they would com­plete a new pri­vacy audit.

FBI Dir­ect­or James Comey has told Con­gress that the data­base would not col­lect or store pho­tos of or­din­ary cit­izens, and in­stead is de­signed to “find bad guys by match­ing pic­tures to mug shots.” But pri­vacy groups con­tend that the im­ages could be shared among the FBI and oth­er agen­cies, in­clud­ing the Na­tion­al Se­cur­ity Agency, and even with state mo­tor-vehicle de­part­ments.

In his testi­mony, giv­en in June, Comey did not com­pletely re­fute that data­base in­form­a­tion could po­ten­tially be shared with states, however.

Gov­ern­ment use of fa­cial-re­cog­ni­tion tech­no­logy has un­der­gone in­creas­ing scru­tiny in re­cent years, as sys­tems once thought to ex­ist only in sci­ence fic­tion movies have be­come real­ity. The New York Times re­por­ted on leaks from Ed­ward Snowden re­veal­ing that the NSA in­ter­cepts “mil­lions of im­ages per day” across the In­ter­net as part of an in­tel­li­gence-gath­er­ing pro­gram that in­cludes a daily cache of some 55,000 “fa­cial-re­cog­ni­tion qual­ity im­ages.”

The Justice De­part­ment did not im­me­di­ately re­turn a re­quest for com­ment re­gard­ing wheth­er it will ap­peal Chutkan’s de­cision.

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