In July, Sen. Al Franken opened a Senate hearing on the privacy and civil liberties implications of facial recognition technology by affirming some incontrovertible facts. “You can change your password. You can get a new credit card. But you can’t change your fingerprint, and you can’t change your face,” Franken said. “Unless I guess you go to a great, you know, deal of trouble.”
Franken is concerned about the Next Generation Identification system, a database the FBI has been building that harnesses the data-gathering power of an emerging slew of forensic technologies. NGI will allow the bureau to integrate a vast array of forensic data culled from local and state law enforcement agencies, including fingerprints, palm prints, scar and tattoo records, and facial photos.
The FBI is currently conducting trials of its facial recognition system in states like Ohio and Hawaii. The system will allow states to automatically cross-reference photographs against a national repository that will one day hold nearly 13 million photos.
In the past, states were required to file specific requests with the FBI to use the national photo bank. With NGI, that process will be largely automated. Synching up databases in this way is expected to expedite the facial recognition and matching process for agencies anxious to learn if, for instance, another state has a warrant out for an arrestee. The system could also help identify suspects caught on security cameras.
Michigan tested out the program earlier this year. Jeremy Slavish, an official with the Michigan state police, says that the state sent two types of photos to the FBI: mug shots of arrested offenders, and “probe” photos, which he described as “anything where law enforcement only has a photo to identify someone. Typically a surveillance or security camera shot.”
The FBI then cross-references probe photos against its national repository of mug shots and searches for potential matches.
At a hearing in July, Sen. Al Franken sought assurances from the FBI’s Jerome Pender, the official in charge of NGI at the time, that the program would not be directed at peaceful protestors. Pender said that the system would be limited to investigating crimes, and that law enforcement officers would have to clarify the “criminal justice functions that they are trying to perform” if they were to target protestors.
But he was less firm on Franken’s more urgent concerns. “I can’t think of something that says you should not use this at a political event,” Pender said, though he did add that such uses may still be “be outside of what is permitted” explicitly under the FBI’s rules.
The FBI’s 2008 privacy impact assessment for its photo system, the current guide for how NGI will be used, indicates that while many of the photos will be mug shots taken by law enforcement, others could come from security cameras, friends, or family members. It also says that the bureau may expand its facial recognition capability to the civil records, such as those compiled during routine employment background checks.
At the July hearing, Pender said that the assessment is under review. The FBI declined to comment on the status of the review.
It may not be easy for individuals to determine if photos of them are in the database.
In early October, the Department of Justice freed the FBI’s “Data Warehouse System”—which will include data from NGI—from several key provisions of the Privacy Act of 1974. Under the exemptions, the FBI will not be required to notify citizens whose information has been logged in the FBI’s Data Warehouse, nor will it have to grant them access to potentially inaccurate records kept on them.
According to Jim Harper, the director of information policy studies at the Cato Institute, granting entire databases such exemptions is “just not the purpose” of those provisions.
Franken, meanwhile, is “eager to know about FBI’s plans to expand the use of facial recognition technology on databases of non-criminal individuals.”
“I’m still waiting to hear from the FBI,” he said in an email exchange.
The American Independent is a nonprofit newsroom that funds and publishes independent investigative journalism, and can be reached at editor@americanindependent.com.