Justice and Due Process

Facial Recognition Is Terrifying, Even (Especially) When It Works

John Croxton is a Policy Research intern with the Libertas Institute, a free-market think tank in Utah. He is currently studying for a Master’s degree in Economics at George Mason University.

On July 13, Robert Williams was arrested for shoplifting. The police blocked him into his driveway, handcuffed him in front of his wife and crying children, and held him in jail. 

Williams’ drivers’ license had been identified by a facial recognition algorithm as the perpetrator’s — but when the detectives saw the surveillance photo and Williams side-by-side, it clearly wasn’t him. He held the photo next to his face for emphasis, with one detective saying to the other, “I guess the computer got it wrong.” 

Even so, police held Williams for 30 hours before releasing him on a $1,000 bail. Two weeks later, with Williams missing work to appear in the courtroom, prosecutors finally moved to dismiss the case. 

Facial recognition technology is still new, and Robert Williams will join a long list of wrongfully identified victims nationwide as its creators struggle to fix common problems. In many ways, the challenges of the technology mirror the well-known unreliability of eyewitness testimony, which is involved in 70 percent of wrongful convictions. But facial recognition will only continue to improve over time, soon leaving us to grapple with the reality of a more powerful surveillance state. 

Lawmakers can try to ban the technology while it makes simple mistakes, but once those flaws are ironed out, the utility of the technology will have police departments and government agencies reaching for automated facial ID software at every opportunity.

The only thing worse than an arbitrary, incompetent government violating its citizens’ liberties is an arbitrary, competent one. Cameras on street corners combined with surveillance of citizens’ digital activities could easily result in sky-high conviction rates for an array of minor crimes. 

Would we want everyone who’s smoked marijuana to be fined or thrown in prison, even as two-thirds of Utahns support full legalization on par with alcohol? Would we want all jaywalkers to be fined over a hundred dollars for crossing the street? 

Many federal and state laws are designed with an understanding that police won’t catch most cases, so violators should be made examples of. The advent of ever-greater surveillance tools to catch suspects in the act would be a disaster for individual freedoms. 

More worrying still is the prospect of turning the surveillance state to political purposes. It is public record that under the Obama administration, the FBI and CIA spied on the Trump campaign, prompting unfounded accusations of collusion with Russia. The Trump administration in turn seized Democratic lawmakers’ phone records, as well as other private communications by its own staff

The unchecked surveillance bureaucracy is simply too tempting for politicians to leave untouched. Washington’s intelligence apparatus thus threatens to undermine the American bedrock of free and fair elections.

Luckily for its residents, Utah is a national leader in protecting citizens from state surveillance. It was the first state in the nation to require law enforcement get warrants to view citizens’ private electronic data, like emails, cloud storage files, and search results. Libertas has contributed to Utah’s pioneering privacy work on this new front, including supporting the passage of HB 243, “Privacy Protection Amendments,” to inform the public of when police and other law enforcement agencies use new digital surveillance tools. 

As the surveillance state’s reach grows, only firm vigilance by policymakers and private citizens will keep our liberties safe.