Va. facial recognition law protects public’s privacy

In April, lawmakers replaced Virginia’s short-lived ban on law enforcement use of facial recognition technology with a comprehensive set of rules for its use.

In a June 19 column (“Too many flaws in commonwealth’s facial recognition law”), an opponent of the new law claimed it has “too many flaws” and “gives police overly broad ability to use facial recognition.”

But as the law’s July 1 effective date approaches, it’s critical to understand the facts.

The bipartisan law supported by majorities of both parties in Virginia’s Senate and House of Delegates imposes the nation’s most stringent set of rules for facial recognition and extends them to the previously unrestricted Virginia State Police.

While the columnist expressed doubts about the usefulness of facial recognition, last year the obstruction of criminal investigations resulting from a complete ban became apparent, prompting lawmakers to begin developing a rule framework that would follow this pause on use of the software.

One case was that of a murder at a Falls Church ATM, where suspect photos were available but little else. Without facial recognition, investigators are left with manual review of photos in criminal record databases and open-source information, as well as requests for public help with identifying persons in photo evidence. Facial recognition can aid and hasten this process by comparing such photos with those in available databases and returning photos with high similarity scores.

For U.S. law enforcement, the technology is a post-incident investigative tool to aid identification — but not confirm identities. A possible match identified by software is no different than a lead from an anonymous tip — investigators must use other means to find and confirm further evidence to positively identify the person and, if a suspect, establish probable cause.

To address concerns about possible misidentification and misuse, the law prevents match results from being considered probable cause for arrests or search warrants, or as supporting evidence. It imposes statewide standards to ensure law enforcement does not deviate from very specific authorized uses for investigations or helping citizens in need. The law completely bans use of facial recognition for surveillance. And it imposes criminal penalties against any law enforcement personnel who would violate these controls.

Addressing accuracy concerns, the law makes Virginia the first jurisdiction in the country to require U.S. government evaluation of the accuracy of facial recognition used by law enforcement, and additionally establishes a high-performance threshold.

Virginians will undoubtedly benefit from restoring access to tools with proven public safety value in fighting human trafficking, solving hate crimes and cracking cold cases. Prior to the pause on the technology last year, there were many successes.

In one northern Virginia county, investigators trying to identify a person suspected of child sex trafficking compared a photo of the subject to regional booking and arrest photos and developed a lead critical to the case.

In a rural area in southern Virginia, law enforcement came upon the body of an unidentified male dumped along a roadway. The software was used with photos of the victim’s face to develop a lead that resulted in identification of the deceased individual and three arrests for their murder.

Back in Northern Virginia, investigators used available photos and facial recognition to develop a lead on a suspected firearms trafficker, whose identity and residence was confirmed in the subsequent investigation.

It’s a good thing Virginia lawmakers have taken time to build out regulations around law enforcement use of facial recognition technology, which ensure effective technology tools are available when needed to keep our communities safe, while setting clear rules that protect privacy and guard against misuse.