The facial-recognition technology developed by Clearview AI allows users to upload a photo of an unidentified person and search for potential matches from its massive database.
The database consists of over three billion images culled from YouTube, Facebook, Venmo and millions of other web sites, as opposed to photos scoured merely from traditional governmental sources such as driver's licenses and mug shots.
Critics contend Clearview AI treads on basic privacy and civil rights by collecting and storing data on individuals without their knowledge or consent. "The relationship between the Staten Island D.A.'s office and Clearview, a for-profit company whose software's bias and unreliability has been the subject of criticism, is deeply troubling," said Diane Akerman, staff attorney with Legal Aid's Digital Forensics Unit, in a statement.
"Use of the technology threatens to increase surveillance of historically over-policed communities — communities of color, Black and brown communities, and activists — who have long disproportionately shouldered the harmful effects of surveillance by law enforcement," Akerman said.
Critics warn the technology can potentially result in prosecution based on misidentification.
Legal Aid, she said, is calling on District Attorney Michael E. McMahon "to disclose how his office has used Clearview AI on unsuspecting Staten Islanders and to cease any current use of facial-surveillance technology."
Legal Aid is a public defenders' organization.
FOIL Documents
According to documents obtained by Legal Aid through the Freedom of Information Law (FOIL), the D.A.'s office signed a one-year contract with Clearview AI in May 2019 to use the facial-recognition technology. The cost was $10,000.The software is "an investigative tool that uses image-search technology across publicly displayed social media platforms to assist law enforcement in identifying or locating perpetrators and victims of crime," the D.A.'s office stated in a usage-guidance document obtained through the FOIL request.
The technology "may also be used to exonerate the innocent or develop leads in cold-case matters," said the D.A.'s guidelines.
At the time, 11 individuals in the office — detective investigators, criminal analysts and computer programmers — were listed as users of the software.
In a statement, McMahon said his investigators use "the best technology safely and responsibly" to aid crime victims and help solve crimes.
"As such, we take our obligation to protect the public very seriously, and strict protocols are followed by my office to ensure privacy and civil rights are not violated when using new investigative methods and technology," said McMahon.
"While facial-recognition software is a useful tool still used at times by my office, it is certainly not the only resource we depend on to investigate and prosecute crime," said McMahon. "Further, any suggestion that cases are prosecuted based only on the use of this software and without any other evidence is an entirely wrong and misleading statement."
In light of the storming of the Capitol Building in Washington D.C. two weeks ago, and the "widespread arrests" that quickly followed, McMahon said he believes "every American can see how such technology can be an effective tool for law enforcement when used properly and safely."
Legal Aid contends the D.A.'s internal protocols didn't limit Clearview's use to specific cases. That means the software could have been used on the most minor of charges, Legal Aid maintains.
McMahon is the only prosecutor in the city known to have contracted with Clearview AI, according to Legal Aid.
How It Works
On its Web site, Clearview AI says the company's technology is not a surveillance system and only searches the open Web. It does not and cannot search any private or protected information, including private social media accounts, the web site said.Critics, however, worry about a lack of scrutiny and oversight in the use of facial-recognition technology.
Last May, BuzzFeed News reported that Clearview AI was terminating its accounts for clients not associated with law enforcement or government departments and agencies.
Numerous private companies such as Bank of America, Macy's, Walmart and Target had used Clearview's service, the report said.
Many jurisdictions remain wary of the technology and the potential for misidentification.
Boston, Portland and San Francisco are among those who have banned law enforcement's use of facial-recognition technology, the Gothamist reported.
New Jersey's attorney general has ordered all police departments in the state to stop using Clearview AI's program, the report said.
Legal Aid believes the Staten Island D.A.'s office's use of the technology has generated materials subject to pretrial discovery. Such information, however, has not been turned over to the defense, Legal Aid said.
In response to a FOIL request, Legal Aid said the D.A.'s office refused to provide copies of facial recognition searches run through the Clearview AI program.
"To disclose such records would constitute an unreasonable invasion of personal privacy," the D.A. replied, according to a Legal Aid spokesman.
In addition, the D.A.'s office said it could not locate any Clearview contract documents after May 2019, the spokesman said.
Akerman urged lawmakers to pass pending legislation prohibiting the use of facial recognition and other biometric surveillance technology.
Mark J. Fonte, a St. George-based criminal defense lawyer and former prosecutor, said the use of facial-recognition technology sits on a slippery slope.
"As a society we are experiencing the steady erosion of our right to privacy," said Fonte. "There must be a distinction between voluntarily giving the government your likeness as opposed to unknowingly having your likeness captured through technology. There is a difference between posing for a driver's license photo as opposed to posting a picture on social media from the privacy of your home."
He added: "Although our current district attorney is professional and will undoubtedly wield this technology responsibly, he will not be in office forever. This technology in the hands of an overzealous prosecutor is terrifying. Limits and controls must be in place as guardrails to prevent its abuse and limit the intrusion into citizens' privacy rights."
(c)2021 Staten Island Advance, N.Y. Distributed by Tribune Content Agency, LLC.
