In 2022 the Virginia General Assembly proposed legislation to study facial recognition technology and authorizes the use of it if the technology meets certain standards, with specific limitations and safeguards built into the proposed statutes. On April 27, 2022, the Governor approved the legislation and signed into law several statutes authorizing the study and future use of facial recognition technology.
Arguments against the law have claimed that it is a violation of personal privacy and rights. Arguments for the technology have looked towards evidence that facial recognition technology is better at avoiding misidentifications than eyewitnesses. Regardless of which side of the argument you agree with, it is safe to say that this new law is going to affect criminal defense trials in new and unique ways.
Rather than arguing one way or another, let’s look at what this new law lays out to get some solid answers on how it is supposed to work. Police aren’t authorized to use facial recognition technology for every case, so we’ll first see when they are authorized to do so. The, we’ll explain what uses are prohibited. Finally, we’ll also see how the law looks to make this process more transparent to the public.
When are Police Authorized to Use Facial Recognition?
The new law does not give the police the ability to use facial recognition software however they choose. It is very specific about what circumstances warrant the use of the technology. This is one of the ways that the law has been written to try to prevent abuses of the technology.
While there are limitations, law enforcement is still authorized to use facial recognition in quite a few circumstances. There are fourteen different authorized uses for facial recognition software in Virginia Code Sections 15.2-1723.2.and 23.1-815.1 (this latter Code section is specifically for Campus Police Departments). They are:
- help identify an individual when there is a reasonable suspicion the individual has committed a crime;
- help identify a crime victim, including a victim of online sexual abuse material;
- help identify a person who may be a missing person or witness to criminal activity;
- help identify a victim of human trafficking or an individual involved in the trafficking of humans, weapons, drugs, or wildlife;
- help identify an online recruiter of criminal activity, including but not limited to human, weapon, drug, and wildlife trafficking;
- help a person who is suffering from a mental or physical disability impairing his ability to communicate and be understood;
- help identify a deceased person;
- help identify a person who is incapacitated or otherwise unable to identify himself;
- help identify a person who is reasonably believed to be a danger to himself or others;
- help identify an individual lawfully detained;
- help mitigate an imminent threat to public safety, a significant threat to life, or a threat to national security, including acts of terrorism;
- ensure officer safety as part of the vetting of undercover law enforcement;
- determine whether an individual may have unlawfully obtained one or more state driver’s licenses, financial instruments, or other official forms of identification using information that is fictitious or associated with a victim of identity theft; or
- help identify a person who an officer reasonably believes is concealing his true identity and about whom the officer has a reasonable suspicion has committed a crime other than concealing his identity.
What Can’t Facial Recognition Software Be Used to Do?
One excellent prohibition is that law enforcement officers may not use the results of the facial recognition technology to establish probable cause to obtain a search warrant or an arrest warrant. On the other hand, the results are admissible for use by a defendant as exculpatory evidence.
The Code of Virginia explicitly specifies a few other uses of facial recognition technology that are not permitted. They are:
- To track the movements of identified individuals in a public space in real-time.
- To create a database of images using a live video feed for the purpose of using facial recognition technology.
- To enroll a comparison image in a commercial image repository of a facial recognition technology service provider except pursuant to an authorized use.
- If pursuant to an authorized use, then no comparison image may be retained or used further by the service provider except as required for auditing that use or as may be otherwise required by law.
Those who violate the policy for the use of facial recognition technology or who conduct a search for any reason other than an authorized use are guilty of a Class 3 misdemeanor. Training would then be required before they could use facial recognition technology again.
A second violation is supposed to result in the guilty party’s employment termination. It also becomes a Class 1 misdemeanor.
However, these restrictions come with some caution. Although law enforcement officers are only supposed to be able to use the software for the fourteen reasons listed in the previous section, it is apparent that these fourteen authorized uses cover a wide range of different situations.
What Prevents This Technology from Being Abused?
First and foremost, while the statutes do authorize the use of facial recognition technology, it does not yet allow the use of the technology. The Virginia State Police is required to evaluate the technology to ensure whatever software programs are ultimately authorized have an accuracy score of at least 98%. The State Police is also required to create a Model Facial Recognition Technology Policy that local law enforcement would follow and publish it no later than January 1, 2023, or the local law enforcement department would have to create its own approved standards. Every entity using the technology must maintain records of how it uses facial recognition technology, and create an annual publicly posted update on the use of the technology.
This information is supposed to contain data about the misuse of the technology, as well as its legitimate use. Obviously, we won’t be able to adequately assess this data until after the technology is approved and then used. Even then, there is no guarantee that important information would not be withheld.
For the time being, the best way to prevent the technology from being abused is to work with a criminal defense attorney.
Why Would Working With a Criminal Defense Attorney Help?
It is a criminal defense attorney’s job to fight against violations of their client’s rights. This doesn’t just mean proving that they are innocent of the crime that has been committed. In some cases, it means showing that law enforcement used illegal means to gather evidence or make a case against a client. If a law enforcement agency is using this technology before its use is authorized, an experienced criminal defense attorney will conduct an appropriate investigation and may file motions in court to suppress any evidence obtained from its use.
The use of facial recognition technology is coming, and an experienced criminal defense attorney will be prepared to attack its use. But defending the rights of clients isn’t something that is new to a criminal defense attorney. It is what they do for a living, and that is going to continue when law enforcement begins the widespread use of facial recognition technology.