EPIC, EFF, & NACDL Amicus Brief Urges NJ Court to Recognize Right to Discovery on Facial Recognition Used to Identify Defendant

September 27, 2022

EPIC has filed an amicus brief in New Jersey v. Arteaga supporting the defendant’s right to know the details of how he was identified by a facial recognition system. Mr. Arteaga was identified as a suspect in an armed robbery in New Jersey by a facial recognition search performed by the NYPD. Even though the facial recognition search was the key investigative step that led to Mr. Arteaga being charged with a crime, the district court denied requests for discovery on the specifics of the search and the technology used to identify him.

The brief, submitted by EPIC, the Electronic Frontier Foundation, and the National Association of Criminal Defense Lawyers argues that discovery is necessary in cases like Mr. Arteaga’s because the risk of misidentification from a facial recognition system is unique to each search and varies greatly based on the system used, the database searched, the quality of the photograph submitted, and the demographics of the individual potentially misidentified. The brief explains that humans and facial recognition systems tend to make the same kinds of mistakes. Therefore, subsequent forms of human review, including photo lineups, are likely to reinforce instead of correct errors made by facial recognition systems. Discovery represents a last chance to correct misidentifications by facial recognition systems before innocent individuals are wrongfully convicted of crimes. EPIC regularly files amicus briefs and advocates to roll back the use of facial recognition systems.

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