Our faces are often exposed and, unlike passwords or pin numbers, cannot be remade. Governments and businesses, often working in partnership, are increasingly using our faces to track our whereabouts, activities, and associations. This is why EFF recently submitted comments to the U.S. Commission on Civil Rights, which is preparing a report on face recognition technology (FRT).   

In our submission, we reiterated our stance that there should be a ban on governmental use of FRT and strict regulations on private use because it: (1) is not reliable enough to be used in determinations affecting constitutional and statutory rights or social benefits; (2) is a menace to social justice as its errors are far more pronounced when applied to people of color, members of the LGBTQ+ community, and other marginalized groups; (3) threatens privacy rights; (4) chills and deters expression; and (5) creates information security risks.

Despite these grave concerns, FRT is being used by the government and law enforcement agencies with increasing frequency, and sometimes with devastating effects. At least one Black woman and five Black men have been wrongfully arrested due to misidentification by FRT: Porcha Woodruff, Michael Oliver, Nijeer Parks, Randal Reid, Alonzo Sawyer, and Robert Williams. And Harvey Murphy Jr., a white man, was wrongfully arrested due to FRT misidentification, and then sexually assaulted while in jail.

Even if FRT was accurate, or at least equally inaccurate across demographics, it would still severely impact our privacy and security. We cannot change our face, and we expose it to the mass surveillance networks already in place every day we go out in public. But doing that should not be license for the government or private entities to make imprints of our face and retain that data, especially when that data may be breached by hostile actors.

The government should ban its own use of FRT, and strictly limit private use, to protect us from the threats posed by FRT. 

On Tuesday, EFF urged the Massachusetts Supreme Judicial Court, the highest court in that state, to affirm that a witness who has no knowledge of the proprietary algorithm used in black box technology is not qualified to testify to its reliability. We filed this amicus brief in Commonwealth v. Arrington together with the American Civil Liberties Union, the American Civil Liberties Union of Massachusetts, the National Association of Criminal Defense Lawyers, and the Massachusetts Association of Criminal Defense Lawyers. 

At issue is the iPhone’s “frequent location history” (FLH), a location estimate generated by Apple’s proprietary algorithm that has never been used in Massachusetts courts before. Generally, for information generated by a new technology to be used as evidence in a case, there must be a finding that the technology is sufficiently reliable.  

In this case, the government presented a witness who had only looked at 23 mobile devices, and there was no indication that any of them involved FLH. The witness also stated he had no idea how the FLH algorithm worked, and he had no access to Apple’s proprietary technology. The lower court correctly found that this witness was not qualified to testify on the reliability of FLH, and that the government had failed to demonstrate FLH had met the standard to be used as evidence against the defendant. 

The Massachusetts Supreme Judicial Court should affirm this ruling. Courts serve a “gatekeeper” function by determining the type of evidence that can appear before a jury at trial. Only evidence that is sufficiently reliable to be relevant should be admissible. If the government wants to present information that is derived from new technology, they need to prove that it’s reliable. When they can’t, courts shouldn’t let them use the output of black box tech to prosecute you. 

The use of these tools raises many concerns, including defendants’ constitutional rights to access the evidence against them, as well as the reliability of the underlying technology in the first place. As we’ve repeatedly pointed out before, many new technologies sought to be used by prosecutors have been plagued with serious flaws. These flaws can especially disadvantage members of marginalized communities. Robust standards for technology used in criminal cases are necessary, as they can result in decades of imprisonment—or even the death penalty. 

EFF continues to fight against governmental use of secret software and opaque technology in criminal cases. We hope that the Supreme Judicial Court will follow other jurisdictions in upholding requirements that favor disclosure and access to information regarding proprietary technology used in the criminal justice system.   

• EFF Amicus Brief in Commonwealth v. Arrington