S. E. Williams
“While we are proud of our history regarding the use of cutting edge technologies to help law enforcement officers keep the public safe, announcing or publicizing specific crime fighting capabilities can be counterproductive to their success.”
–Lieutenant Daniel D. Anne, Riverside County Sheriff Department & Lieutenant Noel Wilterding, San Bernardino County Sheriff Department
The Privacy Act of 1964 placed strict limitations on the ability of agencies to collect, in close, and use personal information maintained in records systems.
It required any agency to publish a System of Records Notice in order to disclose which categories of individuals have their information stored in the database and the type of data being collected. This requirement was established and required for projects that involve personal data as a way to both anticipate and mitigate the possibility of any potential overreach by government agencies.
In 2013, Riverside and San Bernardino Counties began quietly collecting iris scans as part of a pilot program with the FBI; at the same time, it also incorporated the capture of facial scans to add to the FBI database—neither the iris pilot nor facial scanning programs have privacy impact assessments.
A report by The Verge in July quoted an FBI representative who said a 2014 preliminary privacy review of the San Bernardino County program determined the privacy assessment was unnecessary, "because the pilot was conducted with very limited participation for a limited period of time in order to evaluate iris technology."
Although The Voice/Black Voice News has not independently confirmed this statement, it did confirm via a public records request with the California Department of Justice (Cal DOJ) in regards to the Riverside/San Bernardino Counties’ participation in the Iris Project (IP) that the Memorandum of Understanding between the Cal DOJ and the FBI was for a limited period of time—one year, to be operational from September 2013 to September 2014; however today, two years beyond the September 2014 project expiration date, the program is still ongoing with no end date in sight.
When Cal DOJ was asked directly by The Voice/Black Voice News about privacy guidelines for the Iris Pilot it responded, “Regarding privacy guidelines, the California DOJ has no responsive records.”
Also, in response to this paper’s request, Cal DOJ provided a redacted copy of the Memorandum of Understanding that defined the counties participation in the FBI’s Next Generation Identification (NGI) Iris Pilot (IP) program.
According to Cal DOJ, the FBI’s Automated Fingerprint Identification System (IAFIS) originally implemented in July 1999 required enhancements to keep pace with technology. As a result, the FBI initiated the Next Generation Identification (NGI) Program to expand the IAFIS. The IP was implemented to address and enhance the FBI NGI’s iris processing capabilities; to demonstrate proof of the concept; and to establish thresholds for what it identified as light out (no human intervention) searches at the national level. It is also intended to be refined as a useful investigative and identification tool for the law enforcement community.
According to Cal DOJ Manager Jamie Tackett, “The IP will allow for the evaluation of iris capture and recognition technology in an operational setting while addressing some of the key challenges associated with the technology's use for a large-scale law enforcement application.”
Also, according to Tackett, “This pilot is designed to provide participating law enforcement agencies with an automated iris recognition search of the iris pilot repository, which will be expanded and updated periodically . . .”
The agency also stressed that information derived from the FBI IP search requests and responses shall only be used as investigative leads and shall not be considered as positive identifications. “The parties are prohibited from relying solely on IP search responses as the sole impetus for law enforcement action. Other indicators and factors must be considered by the submitting agency prior to taking action.”
When this reporter questioned the FBI about its role in the Iris Pilot and why the pilot is still ongoing two years beyond its scheduled completion of September 2014, Chief Stephen Fischer Jr., Multimedia Productions, FBI Criminal Justice Information System (CJIS) Division replied, “The FBI Iris Pilot was initially scheduled for approximately 12 to 18 months to offer iris enrollment and identification services to select criminal justice partners.” He added, “The CJIS Division has decided to continue this Iris Pilot for an estimated two to three years.”
Fischer stressed, “The pilot allows the FBI to evaluate iris technologies. Participating agencies are able to enroll images with booking transactions and perform related searches.” Also, according to Fischer, the FBI’s Biometric Center of Excellence (BCOE) began the iris recognition pilot to provide iris biometric search services to participating criminal justice agencies.
Beyond Riverside and San Bernardino Counties, other criminal justice agencies identified by Fischer as having also signed Memorandums of Understanding to participate and/or are providing iris images to the FBI’s iris pilot include, “U. S. Border Patrol, Texas Department of Public Safety, California Department of Justice, Missouri State Highway Patrol, Rhode Island State Police, U. S. Probation, Department of Defense, and the U. S. Marshals Service.”
San Bernardino and Riverside Counties’ Sheriff Departments have a Regional Cal-ID program that oversees the biometric technology for each county respectively and together as a region. As a part of that regional partnership, each county participates in the collection of biometrics at the time of arrest. The biometrics collected include mugshots (facial scans), fingerprints, and of course, iris images.
According to both Lieutenant Daniel D. Anne of Riverside County Sheriff Department’s Cal-ID / Biometric Identification Network and Lieutenant Noel Wilterding, San Bernardino County Sheriff Department’s Cal-ID / Biometric Identification Network, in 2013 the Riverside/San Bernardino Cal- ID embarked on a program to evaluate the use of the iris as another biometric modality to identify arrestees booked into county jails. “New mugshot cameras were installed in Riverside and San Bernardino County jails that were capable of taking not only traditional mugshot photos, but also high-resolution images of an arrestees’ irises,” they confirmed.
Anne and Wilterding were asked about a previously unconfirmed comment regarding how their counties actually started using their iris scan programs before the FBI Iris Pilot began in September 2013. Their response, “Several years ago, multiple law enforcement agencies in the country were reporting the benefits of using the iris biometric to identify arrestees and also as a means to account for jail inmates as they were moved from different locations inside and outside of the jail. In mid-2013,” they continued, “Riverside/San Bernardino Cal-ID began evaluating the use of the iris as another biometric modality for conclusively identifying people. Several iris-capable mugshot cameras were installed in Riverside and San Bernardino County jails, prior to our participation in the FBI Iris Pilot.”
On average, based on the number of arrestees between the two counties, they collect about 388 iris scans daily. As of December 31, 2015, Riverside/San Bernardino Cal-ID had collected iris images from approximately 285,310 arrestees.
During the exchange the lieutenants also confirmed their counties use of facial recognition software—technology they have admittedly used much longer than iris scans. “Riverside County began using mugshot photos for facial recognition purposes in 2010 when facial recognition software was purchased; however, Riverside County is able to use all mugshot images collected since 2005. Mugshots taken in San Bernardino County jails as far back as 2002 can be searched using facial recognition software.” Riverside/San Bernardino Cal-ID has approximately 2.5 million mugshot images available for search through its regional facial recognition program.
Iris and facial scans of individuals arrested and not charged or charged and not convicted remain in the counties’ Cal-ID database indefinitely—this includes mugshots (facial scans), iris imaging and fingerprinting.
When Anne and Wilterding were asked why Riverside and San Bernardino Counties never announced the implementation of the iris and facial scan programs they responded, “While we are proud of our history regarding the use of cutting edge technologies to help law enforcement officers keep the public safe, announcing or publicizing specific crime fighting capabilities can be counterproductive to their success.”
However, even as Riverside and San Bernardino Counties help the FBI build its Next Generation Identification (NGI) database—at the national level, privacy and accuracy concerns are growing. The FBI’s NGI database will reportedly contain not only iris and facial scans in addition to finger and palm prints but voice data as well; but, courts have yet to address whether biometric data can be collected without a person’s knowledge or authorization.
A Government Accountability Office (GAO) report released in June confirmed that although the FBI’s facial recognition database contained 411 million criminal and civilian photos–it had not been tested for accuracy and the agency had failed to observe privacy safeguards.
In a statement to the media about the report Senator Al Franken, the ranking member of the Subcommittee on Privacy, Technology and the Law Committee on the Judiciary of the United States Senate declared, “This GAO report raises some very serious concerns, and reveals that the FBI’s use of facial recognition technology is far greater than had previously been understood.” Franken continued, “This is especially concerning because the report shows that the FBI hasn’t done enough to audit its own use of facial recognition technology or that of other law enforcement agencies that partner with the FBI, nor has it taken adequate steps to ensure the technology’s accuracy.” To view the GAO report in full visit www.gao.gov/assets/680/677098.pdf.
Laws in America have failed to keep pace with technology. There appears to be few protections of citizens’ privacy rights in regard to the use of biometrics. Black Americans and other minorities are so disproportionately impacted by anything related to the criminal justice system—they are the ones most grievously at risk. The Voice/Black Voice News was unable to ferret out any pending legislation sponsored by any member of the Congressional Black Caucus that speaks specifically to concerns about the criminal justice system’s use of biometrics.