Maryland recently passed two bills that would regulate how law enforcement officers use facial recognition technology during investigations of certain types of crimes. The bills elaborate and describe various requirements for facial recognition, which are said to be the strongest in any state across the United States.

These new rules and regulations are being put in place at a time when facial recognition has become a big part of policing. The hope is that the passing of these bills will address some of the questions about privacy, legal rights, and civil liberties that frequently emerge when it comes to this type of technology.

About the new bills that passed

According to an article published on the Biometrics Research Group’s website, two bills were recently passed in Maryland, which are House Bill 338 and Senate Bill 182. These bills would implement new rules and regulations for facial recognition software, and they are expected to land on the governor’s desk in the very near future and could start being enforced as soon as October 2024. The Senior Director of Government Relations at the Security Industry Association, Jake Parker, stated that the regulations would provide “maximum transparency, accountability and safeguards to address public concerns, without placing undue limits on investigative tools used every day by our law enforcement professionals to solve crimes and keep Marylanders safe.”

Key provisions of the bills include:

• Restrictions on using potential match results as evidence in trials
• Frequent audits and reporting to ensure transparency and compliance
• Prohibition of using facial recognition to identify individuals engaged in constitutionally protected activities
• Ban on discriminatory use of facial recognition

Maryland has been using facial recognition for over ten years. However, there has long been a clear need for stricter rules to ensure that it is being used in a correct manner. Darren Popkin, the executive director of the Maryland Chiefs and Sheriffs Association, explained that “this legislation will reassure Marylanders that our law enforcement agencies are leveraging facial recognition software in a lawful, effective, accurate and nondiscriminatory manner that benefits our residents and communities.”

Examples of common issues with using facial recognition in policing and legal cases

There have been several issues with using facial recognition in policing and legal cases throughout the years, such as:

• Lack of consent: People are frequently being subjected to facial recognition without knowing and without providing consent. Most of the time, they are unaware that their face is being captured and stored without their permission. Unfortunately, this means that there is a lack of consent even though individuals should have the right to control how the data of their face is being captured, saved, and analyzed.
• Continuous monitoring: With facial recognition tools being used more often, people are being continuously watched and monitored while in public areas and spaces. As a result, some argue that the program is denying individuals the right to privacy when in public.
• Data breaches: Facial recognition allows the storage of facial data, which can result in data breaches if the authorities do not take proper measures. As a result, people may become the victim of identity theft as well as experience other violations of privacy more often.
• Misidentification and inaccuracies: Facial recognition programs can be inaccurate, especially when it comes to identifying those from diverse racial backgrounds. Due to this, misidentification is common, resulting in unjustified arrests and consequences.
• Over-policing and racial profiling: Facial recognition increases over-policing and racial profiling of certain individuals of various backgrounds. This can open the door for discrimination and lack of equal protection. According to an article in Local News Matters, in 2019 and 2020, three Black men in California were arrested and charged with crimes they did not commit due to facial recognition tools. They each received jail sentences because facial recognition misidentified them as the individuals who committed crimes. Alonzo Sawyer is another man who was arrested a few years ago in Maryland and spent nine days in jail for a crime that someone else who was 20 years younger and seven inches shorter than Sawyer committed. Sawyer was asleep on his couch at the time of the crime.

Possible strategies to defend against charges based on facial recognition in Bowie and Dunkirk

Although cases involving facial recognition can be extremely difficult and challenging to stand up and fight against, a professional criminal defense attorney knows how this technology works, as well as the laws and regulations surrounding the use of it as evidence. An attorney can point to the errors, biases, inaccuracies, and limitations of facial recognition software, which can help build your defense. The following are six possible strategies that we may use to defend you against charges based on facial recognition:

1. We may analyze and question the accuracy and reliability of the facial recognition tool. For example, we may ask about the quality of the facial recognition software, the methodology, and the algorithms used to identify you as the person who committed the crime. It is very important to request a detailed report about how the search was conducted when facial recognition is entered as evidence to potentially find any weaknesses that we can bring up and use.
2. We may hire expert witnesses who have in-depth knowledge and understanding of facial recognition tools. These experts may be able to explain the biases, limitations, inaccuracies, and errors of facial recognition, which could help the judge or jury understand how you could have been falsely accused of a crime based on this technology.
3. We may also find evidence of discrimination or biases, which we can use to show that you were wrongfully arrested or charged with a crime.
4. We may make the argument that the facial recognition software misidentified you. To prove this, we will need evidence or an alibi that shows that you were not at the scene at the time that the crime took place.
5. We may find eyewitnesses who can look at the facial recognition data and any other evidence from the crime scene (surveillance footage, photo, etc.) and determine whether it is you. This will most likely be a close friend, family member, neighbor, coworker, or someone else who knows you well and can identify you.
6. Depending on where the recording happened, we may state that the use of facial recognition goes against your Fourth Amendment rights. This will open the door for a challenge that the technology violated your rights against unreasonable searches and seizures.

Joseph Carey and the legal team at Carey Law Office possess the experience, skills, and knowledge to provide you with a strong defense strategy. Therefore, if you have been falsely arrested and accused of a crime that you did not commit based on facial recognition, we will ensure that you are aware of your legal rights, determine the best course of action to take, and help you defend yourself against any evidence or charges brought forth. Call our office or complete our contact form to schedule a consultation in Bowie or Dunkirk to begin discussing and protecting your future today. Serving all of Calvert County for your convenience.