Facial Recognition in Minnesota

Below are my comments which I have submitted to the LCC subcommitee on Data Practices for their hearing on Thursday, November 7, 2019.

I will not be able to attend the meeting of the LCC subcommittee on Data Practices, but I wish to make brief comments and direct members to information.

A number of years ago I read about new technology being used at the 2001 Superbowl in Tampa, Florida.  As thousands of fans entered the stadium, cameras with 'facial recognition' were being tested secretly.  News reports later told about it. Ever since I have been involved in following the technology and its implications.

The state of Minnesota is involved with facial recognition technology.  First, with digitization of millions of driver license photos with facial recognition standards.  Same is with the booking and arrest photos that the Bureau of Criminal Apprehension collects in the Minnesota Repository of Arrest Photos know as MRAP.  Both of these actions have happened within the last decade.

Comparison with photos (recognition purposes) has happened with these state databases in two significant ways. There has been an active use of the drivers license photo base in dealing with fraud (Minn statute 256.01 subdivision 18d and e) in the human services area.  MRAP has been used by law enforcement agencies in the past. I have done data requests with the Department of Public Safety on this topic which has given me information about their programs.

The MRAP program has increasingly over the years NOT been used for the purpose of comparing photos with facial recognition.  In conversations with officials I've been told they are looking at new software.

Tony Webster did a data request to Hennepin County Sheriff covering biometrics and the use of it which facial recognition is a part of.  What Mr. Webster discovered was that Hennepin County Sheriff Rich Stanek was in midst of researching and implementing facial recognition without policymakers and public knowledge.  Mr. Webster did a story on this: "Hennepin County Sheriff circumvents state to expand facial recognition database"   Link: https://tonywebster.com/2016/06/hennepin-sheriff-facial-recognition/

Local media also reported on this issue brought to attention by Mr. Webster's piece.

Facial recognition technology challenges First and Fourth Amendment principles to their core.  Nothing new as Minnesota policymakers have discovered with avalanche of new technology such as Stingray, license plate readers, for example.  There are no restrictions or regulations in Minnesota with use and deployment of this particular technology.   A recent paper entitled,  "Facial Recognition and the Fourth Amendment" by Andrew Guthrie Ferguson gives some insight on implications of this new technology. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3473423

Racial bias in use of facial recognition is being discussed across the country by policymakers, law enforcement, and the public.  In the City of Detroit debate is happening per the New York Times - "As cameras track Detroit's residents, debate ensues over racial bias https://www.nytimes.com/2019/07/08/us/detroit-facial-recognition-cameras.html 

The Center on Privacy and Technology at Georgetown University (Washington DC) has done research on facial recognition.  It focused on states use of facial recognition and extensive research on the topic in their study - "The Perpetual Line-Up: Unregulated Police Recognition in America"  You find attached to this email the report and profile of Minnesota.  The report is long, but has recommendations for legislatures and Congress.  This is the link to those recommendations: https://www.perpetuallineup.org/recommendations

The Center recently released two additional reports:

- Garbage In, Garbage Out: Face Recognition on Flawed Data  https://www.law.georgetown.edu/privacy-technology-center/publications/garbage-in-garbage-out-face-recognition-on-flawed-data/

- America Under Watch: Face Surveillance in the United States https://www.law.georgetown.edu/privacy-technology-center/publications/garbage-in-garbage-out-face-recognition-on-flawed-data/

The United States House of Representatives had a hearing on facial recognition this past summer.   One of the pieces of research done was by the General Accounting Office in a report entitled: "Face Recognition Technology"  The report deals with the federal government initiative of having a a connected database of photos among the states that can be used for facial recognition.  A number of states have agreed to this with the federal government, some have banned used of drivers license photos, other states have current laws restricting use of of drivers license photos.  The report is attached.

This is the first time that a body of the Minnesota Legislature is taking up the topic of facial recognition on it's own without being intertwined with other initiatives.  Today's meeting is not to be one of reaching what the law to be, but the beginning of discussion with the public as to what the law should be.

It takes time and examination to answer the serious questions this new technology challenges us with.

I wish to thank Clare Garvie (Center on Privacy and Technology at Georgetown University) and Freddy Martinez (Open the Government) for providing information that was used in this comment.

Feel free to contact me for any questions or want more information.

Rich Neumeister

Attachments which I sent to the subcommittee are below.

Perpetual Line-Up: Unregulated Police Face Recognition in America

https://www.perpetuallineup.org/sites/default/files/2016-12/The%20Perpetual%20Line-Up%20-%20Center%20on%20Privacy%20and%20Technology%20at%20Georgetown%20Law%20-%20121616.pdf

Minnesota profile on Facial Recognition

https://www.perpetuallineup.org/jurisdiction/minnesota

GAO Report-Face Recognition Technology

https://www.gao.gov/assets/700/699489.pdf

Minnesotans have no meaningful 4th amendment protections with cops use of drones

There was a meeting today of the Minnesota Legislative Coordinating Commission, subcommittee on Data Practices.  They discussed a proposal to regulate drones used by law enforcement.

In my view, the proposal is anemic and opaque.  Other words, does not give robust accountability in use of drones by law enforcement, gives weak privacy protections for residents of Minnesotan's with their deployment and surveillance use, and transparency of their operations is clouded.

I was not able to be at the meeting, but I provided written commentary.   You will note my analysis is very specific to the proposal.   You can read my comments below, but it's also IMPORTANT to see the draft proposal which is linked above.

Written commentary for July, 24th 2019 meeting of the LCC Subcommittee on Data Practices 

My name is Richard Neumeister.  Since the late 1970's I've been involved with privacy and open government issues on the local, state, and federal level.  I have worked with and helped Minnesota legislators develop public policy on various issues and topics.

Drone regulation 

The Minnesota Legislature has been grappling with drone legislation for the last five years.  I lobbied on the proposals in the first year or two, but since 2016 I've been on the sidelines.

It is my intention to generally lay out my concerns today in written commentary on the suggested draft. SC 5562 can be characterized as an opaque and anemic idea or a robust and accountable suggestion to protect Minnesotans privacy and to keep law enforcement in check in using drones (UAVs).

I believe it tends to be towards the opaque and anemic.

It is important that policymakers and residents get this legislation right to protect Minnesotans privacy and civil liberties.

Search warrant important

It is essential that we not allow this new technology - with enhancements such as thermal imaging, zoom lenses, sensitive microphones, and other tech add-ons to be used without a search warrant.

The draft bill does not make clear whether the proposal updates decades-old Fourth Amendment case law as it applies in aerial surveillance.  Law enforcement has argued there is no Fourth Amendment protections when hovers a UAV over an individual’s property with a camera.  They base that on old court decisions by the US and Minnesota Supreme Courts.

As with the tracking warrant legislation which I was involved with in 2014, the main objective was to overturn old case law and statutory language and to give robust Fourth Amendment protections for Minnesotans with their location data as they used their ‘personal devices’ (cell phones, etc) in their daily lives.

Does this proposal do that?  Does it overturn decades-old case law and allow Minnesotans to have 21st century privacy protections when drones with enhanced technology are used?  There needs to be clarity on this point.  For example, in Ciraolo, a case decided by the US Supreme Court, the court ruled that a person does not have a right to privacy from warrantless aerial surveillance from a plane flying 1000 feet over one’s home and curtilage.  Law enforcement has argued the same with the use of UAVs.

In the bill language, a “law enforcement agency” is defined basically as either a police or sheriff agency. But there are other government entities that enforce rules, regulations, and law.  UAVs can be easily used by those other entities as well, but it appears that the definition excludes them.  For example, licensing, residential, or zoning agencies could use drones for enforcement purposes.  Do not the residents of Minnesota have Fourth Amendment protections in those kind of situations?

 Change to Subdivision 2

In subdivision 2, I believe that the word ‘may’ should be changed to ‘shall’.  To be made clear, the term ‘probable cause’ should also be added.

Problems with Subdivision 3 

Do some of the subdivision 3 exceptions swallow the search warrant protection created in subdivision 2? Very possibly.

Paragraph (a) is a recognized exception to the Fourth Amendment.

The degree of privacy intrusion under paragraph (b) may turn on the enhanced software that a drone mau use in the surveillance and monitoring of a public event.

What is most troubling is paragraph (f), which allows a drone to be ‘borrowed’ by any government agency that wishes to use it.

Let’s say a City wants to see how people are complying with certain rules of what homeowners can have in their backyards.  The local agency requests the use of a drone to hover over backyards (1000 feet up) with enhanced technology to ‘see’ what’s there.  Should not the Fourth Amendment protect the homeowner in this situation?  I believe so.

Subdivision 3 exceptions of (b), (d), (e), and (f) and when data is collected to where it may show a violation of law that evidence should not be used against the subject.  I do not think subdivision 6 does that with the subdivision 3 exceptions.

When reviews subdivision 3 exceptions, one will note that there are different documentation standards among the paragraphs, or none at all.. It is important for the public to know when a UAV is used.  This needs to be reviewed to insure responsibility and answerability to the public.

Subdivision 4

There should be some discussion about subdivision 4.  I have some ideas for additional language for accountability and transparency,

I recommend that language in paragraph (d) should be changed from ‘may’ to ‘shall’.  I also recommend that language be added to cover ‘enhance’ technology, so that the latter part of the sentence may read ‘with facial recognition or other bio-metric-matching, and enhanced technologies unless……’  This change would provide Minnesotans with robust 21st century privacy protections.

Subdivision 5 

I need to review subdivision 5 closely over the next month or so.  It needs to be clear on what is public and what is not.  I am interested to see what currently would be public and what would not become available to the public if this language was passed.

Subdivisions 9  

I am concerned about subdivision 9.  The language in subdivision 9 mirrors language from the tracking warrant statute.

The concerns I have with paragraphs (c) and (d) in particular: Paragraph (c) allows a prosecutor to request that data not be filed.  In paragraph (d), it is specific that only upon the commencement of a criminal proceeding, the warrant application and supporting material must be filed.  But what if there is no commencement of any criminal proceeding?  How in that situation does the warrant and supporting data ever become public?  I believe this is happening with a number of tracking warrants.  What is the trigger to make sure that in these circumstances the search warrant data is eventually public?

Final comment

Minnesotan's should be able to live in security and freedom from surveillance that is not justified.  The proposed bill does not provide robust protection against surveillance techniques enhanced by technology. Abstruse advances enable law enforcement and government to go beyond our expectations without many times public and policymakers making the rules with which they should abide by. 

Over my four decades of involvement with privacy matters, it has been law enforcement that is the institution that wishes to make their own rules, have the least accountability, and be hush-hush on what they may be doing that compromises our privacy.  There is a balance that needs to happen.  I will continue to strive for that and I have done so in the past.

Please contact me if there are any questions with what I have shared with you or want specific ideas to ensure that the drone proposal is one that manners the respect of our civil liberties.

Free workshop in Chanhassen on how to get government info

On Wednesday, January 30, 2019, Saint Paul-based non-profit Public Record Media (PRM) will host a free Freedom of Information (FOI) workshop at the Chanhassen Library (Carver County) in Chanhassen, Minnesota. The event will run from 6:30pm-8:00pm. The library is located at 7711 Kerber Blvd. in Chanhassen, Minnesota.

The workshop will explore how members of the public can use the Minnesota's Data Practices Act to obtain government records on a wide range of issues - from property records, to police reports, to school board plans and government budgets. The presentation will feature comments by Rich Neumeister, a long-time record requester and open government advocate.

PRM is hosting this January event in light of the City of Victoria being in the news last week on a recent decision by the Minnesota Commissioner of Administration that says the mayor of Victoria's Facebook content is not considered government data.  The opinion causes questions if social media communications of public officials are government data and are accessible to the public.

The event is free to the public. Participants are encouraged to bring ideas for their own public record requests.