EPIC, EFF, & NACDL Urge NJ’s Top Court to Recognize the Right to Discovery on Face Recognition

EPIC filed an amicus brief in State v. Miles calling on the court to recognize a defendant’s right to know the details of how he was identified using facial recognition technology. New Jersey law enforcement used facial recognition technology to identify Mr. Miles as a suspect in a homicide investigation. Mr. Miles sought discovery on the details of the search and the technology used, meaning that he and his attorney would be allowed to know details about the system to form arguments about whether it was likely to be accurate. Relying on New Jersey precedent established in State v. Arteaga, the trial court granted discovery. After the appellate court affirmed the trial court’s decision, the State appealed to the New Jersey Supreme Court. 

The brief, submitted by EPIC, the Electronic Frontier Foundation (EFF), and the National Association of Criminal Defense Lawyers (NACDL), argues that discovery is necessary so that criminal defendants and the public at large can ensure courts are making decisions based on good evidence. 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 also explains that subsequent human review tends to reinforce rather than correct errors made by facial recognition systems. As several courts have found, discovery is the final opportunity to correct harm caused by a facial recognition system’s misidentification. Further, we argue that the public’s right to access criminal court proceedings requires this discovery. 

EPIC advocated for this same right to discovery in front of the lower New Jersey courts in Arteaga. EPIC regularly files amicus briefs and advocates to roll back the use of facial recognition systems.