Published on March 7th, 2022 📆 | 3155 Views ⚑
0In West Lafayette, a ban on facial recognition technology failed, but questions remain about its use in Indiana
In West Lafayette, a ban on facial recognition technology failed this past December, but advocates say they plan to launch a new attempt at the ban this week.
West Lafayette Councilmember David Sanders said he will re-introduce a ban on the technology at the councilâs meeting Monday night. In an effort to improve the odds for the ordinanceâs passage after last yearâs veto, Sanders said he will include exceptions allowing police to use the technology in the case of violent crimes.
At issue is whether there is adequate oversight of the controversial technology - and the software companies who contract with the state to provide it.
Facial recognition technology uses computer programs to compare individuals caught on video or camera to a database of faces. Law enforcement agencies say itâs an important tool for investigations - but privacy advocates say databases of photos can include pictures taken from social media without a person's knowledge or consent.
In Michigan, driverâs license photos are automatically shared with the state police. Misidentifications are rare, but they have led to wrongful arrests.
In December, West Lafayetteâs city council voted against pushing through a ban on facial recognition technology - after the cityâs mayor announced a veto.
During the hearing on the ordinance, councilmember David Sanders asked West Lafayette Police Chief Troy Harris which company the department used to conduct facial recognition searches - asking specifically if he had heard of one major provider, Clearview AI.
âClearview? Never heard of it,â Chief Harris responded.
Clearview AI is among the most controversial companies providing facial recognition technology to law enforcement. The company has come under fire for its practice of pulling photos from places like Facebook without user consent. Those photos are then plugged into a database that is used to identify suspects.
Numerous law enforcement agencies across the country have used Clearviewâs software - and privacy advocates worry there hasnât been adequate oversight of the company, the technology, or its use.
Jameson Spivak is an associate at the Center on Privacy and Technology at Georgetown Law, a think tank that looks at surveillance and privacy law. He said traditional facial recognition databases involve one-to-one matching - a photo of a suspect is compared with a mugshot or driver's license photo.
âIn the case of Clearview AI, which is really unprecedented, is that this database includes faces theyâve scraped from the internet,â he said. âSo basically if your photo is on the internet and itâs been identified, you can potentially be in this database. Probably the vast majority of people in this database have no idea that they are in it.â
Spivak said the Center on Privacy supports a moratorium on the use of facial recognition technology.
âIn most cases, this technology was rolled out without really anybody knowing about it in the public,â he said. âA lot of times the elected officials donât even know that itâs being used, because most law enforcement agencies are getting this technology not through the city, the state, or the county budget but from the federal government or non-profit police associations. Basically, the city council might have not even known it was being used.â
In West Lafayette, police officials said facial recognition queries are sent to either the Indiana Bureau of Motor Vehicles or the Indiana Intelligence Fusion Center. But Lt. of Investigations Jonathan Eager said that facial recognition technology is ârarelyâ used.
âWe normally don't get a decent photo of a suspect in an investigation, so it ends up being a resource we don't use,â he said.
The Indiana Bureau of Motor Vehicles did not respond to WBAAâs request for comment.
Captain Ron Galaviz is the Chief Public Information Officer for the Indiana State Police. He said law enforcement agencies across the state send facial recognition requests to the Indiana Intelligence Fusion Center. According to Galaviz, photos sent there for a facial recognition search need to be âlegally obtained.â
âWe have a policy on our website that is open for public view,â he said. âAt the end of the day, we are very cognizant and want to be very respectful of the rights of those people who are moving around out there. We want to operate within the boundaries of making sure peopleâs rights arenât violated.â
The stateâs policy on facial recognition use outlines that the technology may be used on an image if âreasonable suspicion existsâ that the subject is involved with or has knowledge of âpossible criminal or terrorist activity.â
Galaviz said requests require a âcriminal nexusâ to be worth pursuing.
âSo again, going to a protest or a demonstration, a gathering where people have a right to beâif there is no criminal nexus to that, the request wonât be processed,â he said.
Galaviz also underlined that facial recognition matches are not enough to convict someone of a crime. The Fusion Centerâs policy outlines, in all caps, that results of facial recognition searches are âinvestigative leads⌠NOT TO BE CONSIDERED A POSITIVE IDENTIFICATION OF ANY SUBJECT.â
âWhen weâre talking about using this kind of technology it definitely behooved the Fusion Center to enact a detailed policy step by step by stepâ what are the parameters and the boundaries by which this technology can be used,â Galaviz said.
But privacy advocates like Spivak worry that policies guiding law enforcement use of the technology arenât enough to hold police accountable.
âLaw enforcement everywhere says âwe only use this for an investigative lead,ââ he said. âBut thereâs nothing holding them to that.â
When first asked whether the Fusion Center utilized Clearview AI, Galaviz noted that the facial recognition policy only mentions Vigilant Solutions - a separate facial recognition technology provider. Privacy advocates say Vigilant Solutions has a more established brand as a license plate identification software company and, importantly, had submitted to federal accuracy testing - something Clearview did not do until just last year.
Within the Indiana Intelligence Fusion Centerâs policy documents, the only facial recognition provider mentioned is Vigilant Solutions, but a 2021 Buzzfeed investigation found the state police had queried Clearview over 5,000 times during a period starting in 2018 and ending in February of 2020. The Fusion Center privacy policy is dated June 1, 2019.
And, according to Clearview itself, the Indiana State Police were the company's âfirst paying customer.â
When asked when the state of Indiana might have made the switch from Vigilant to Clearview, Galaviz responded via email that âboth platforms are being used as a means of checks and balances.â
A FOIA request made by WBAA found that in 2020 and 2021, the Indiana State Police utilized Vigilant Solutions 373 times. Clearview AI, according to the FOIA request, was used 3,067 times in that same time period - for roughly eight times as many searches.
When asked to explain why Clearview AI is not mentioned in the stateâs policy documents despite being used more, Galaviz said only that âClearview provides a broader data set.â When pushed for further response, Galaviz said âI refer back to what I have previously said about the use of these platforms, which includes acknowledgment of the use of both platforms.â
Spivak, with Georgetown Law, said he could only speculate as to why Clearview is being used without showing up in state policy documents.
âOne of the things I would speculate is that the police are hiding its use is because Clearview became kind of a toxic name,â he said. âWithin the past few years, there have been a number of media reports finding that in developing their system Clearview broke the terms of service of Facebook, YouTube, a bunch of social media platforms because they scraped images from these websites.â
And Spivak said the lack of clarity makes it harder to ensure police are following their own policies.
âThis leads to confusion and less transparency and then ultimately less accountability,â he said.
The situation in West Lafayette is not unique. According to Spivak, there has been little effort at the federal level to provide oversight and accountability for facial recognition technology - pushing local governments to take up the issue themselves.
âIn this vacuum where the federal government isnât doing anything the states and cities are stepping up to pass things,â he said. âBecause the federal government isnât doing anything about it, and because maybe even the states aren't doing anything about it, local activists, local politicians stepped up to try and do something.â
Across the country, Spivak said over twenty cities and two states have passed moratoriums on the use of facial recognition technology - although those moratoriums will sometimes include carve-outs for violent crimes.
West Lafayette Councilmember David Sanders said heâs hopeful changes to the ordinance will help it pass this time around. He said he continues to worry about police use of the technology.
âThe fact that thereâs so much interaction with Clearview AI, and yet it's not present on their public documentsâthat says something to me,â he said. âIt says there is something to hide and it says they clearly donât think the public should know they are using Clearview AI.â
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