B.2(q). Use of Biometrics in Law Enforcement

Biometric data with a proven history, such as fingerprints and DNA, may be used as evidence.

The use of biometrics has been a fundamental aspect of law enforcement for decades. At its best, it helps law enforcement “find the bad guys,” and can even help reverse wrongful convictions (when the state chooses to allow that). Fingerprinting has been in use in the United States since the early twentieth century and is generally reliable. Similarly, DNA evidence has been in use in the United States since 1987. It, too, enjoys a reputation for reliability.

Still, newer means of biometric analysis continue to develop. Anyone with a smartphone is familiar with facial recognition. They probably also know it doesn’t work very well. My phone still hasn't recognized my face. It’s even worse in law enforcement; it systematically misidentifies African American individuals and leads to wrongful arrests. This is an example of a promising, yet emergent technology that isn’t yet ready for use outside the carefully controlled confines of the research and development lab.

Other technologies—such as facial recognition or gait analysis—may not be used until and unless they are affirmatively proven in blind studies to be both accurate and non-prejudicial.

Law enforcement has to be accurate. The reason is two-fold. First, we want to catch the people responsible for crimes before they can commit more crimes. It’s common sense. But second, it is vital that we only catch the people responsible. It is especially important that we don’t use technology that tends to discriminate. This language puts a burden on law enforcement to prove that any biometrics they use for law enforcement is both accurate and non-prejudicial.

Now, some may argue that this ties the hands of law enforcement while the technology is proven. But don’t the American people deserve technology that works the way it is supposed to? Aren’t we entitled to methods of policing that don’t result in false positives? This is no blanket ban, or any ban, really. This simply demands that technology be proven before it is deployed. It should also be noted that police have had these tools for decades, but they have been catching criminals for centuries. Biometrics, if properly tested and vetted, can be enormously helpful, but they aren’t the only way to investigate crime or prove guilt.