The FBI says a 20% error rate for facial recognition is fine


EPIC’s Freedom of Information Act lawsuit has produced new documents about “Next Generation Identification” and the FBI’s plans for facial recognition.

According to the document obtained by EPIC, “NGI shall return an incorrect candidate a maximum of 20% of the time.” That number is much greater than expected.

For-profit mugshot websites are extorting millions of Americans by charging fees to have their pictures removed:

For-profit mugshot websites, with names like MugshotsBustedMugshotsJustMugshots and the Smoking Gun. Charge a fee to remove a persons image. That fee can be anywhere from $30 to $400, or even higher. Pay up, and your picture is deleted, at least from the site that was paid. 

Millions Americans mug shots are now captured on one or more of these sites, this sounds like extortion. Mug shots are merely artifacts of an arrest, not proof of a conviction, and many people whose images are now on display were never found guilty, or the charges against them were dropped. But these pictures can cause serious reputational damage, asMaxwell Birnbaum learned in his sophomore year, when he applied to be an intern for a state representative in Austin. Mr. Birnbaum heard about the job through a friend. 

“The assistant to this state rep called my friend back and said, ‘We’d like to hire him, but we Google every potential employee, and the first thing that came up when we searched for Maxwell was a mug shot for a drug arrest,’ ” Mr. Birnbaum said. “I know what I did was wrong, and I understand the punishment,” he continued. “But these Web sites are punishing me, and because I don’t have the money it would take to get my photo off them all, there is nothing I can do about it.”

It was only a matter of time before the Internet started to monetize humiliation. In this case, the time was early 2011, when mug-shot Web sites started popping up to turn the most embarrassing photograph of anyone’s life into cash. The sites are perfectly legal, and they get financial oxygen the same way as other online businesses — through credit card companies and PayPal. Some states, though, are looking for ways to curb them. The governor of Oregon signed a bill this summer that gives such sites 30 days to take down the image, free of charge, of anyone who can prove that he or she was exonerated or whose record has been expunged. Georgia passed a similar law in May. Utah prohibits county sheriffs from giving out booking photographs to a site that will charge to delete them.

But as legislators draft laws, they are finding plenty of resistance, much of it from journalists who assert that public records should be just that: public. The Reporters Committee for Freedom of the Press argues that any restriction on booking photographs raises First Amendment issues and impinges on editors’ right to determine what is newsworthy. That right was recently exercised by newspapers and Web sites around the world when the public got its first look at Aaron Alexis, the Navy Yard gunman, through a booking photograph from a 2010 arrest.

“What we have is a situation where people are doing controversial things with public records,” says Mark Caramanica, a director at the committee, a nonprofit organization based in Arlington, Va. “But should we shut down the entire database because there are presumably bad actors out there?”

JustMugshots has a “courtesy removal service,” allowing people who have been exonerated, or never charged, or even those who can demonstrate that they have turned around their lives, to get their image taken down free. Mr. D’Antonio declined to say how many people had been granted mercy deletions.

JUSTMUGSHOTS is one of several sites named in a class-action lawsuit filed last year by Scott A. Ciolek, a lawyer in Toledo, Ohio. Mr. Ciolek argues that the sites violate Ohio’s right-of-publicity statute, which gives state residents some control over the commercial use of their name and likeness. He also says the sites violate the state’s extortion law. 


“You can’t threaten to embarrass someone unless they pay you money,” he said, “even if they did exactly what you are threatening to embarrass them about.”

Multi-count indictments provide a means for the government to evade the speedy trial clause:

The vast majority of criminal indictments filed in the 1700s and 1800s accused a single defendant of a single offense.  Because lay citizen grand jurors—nonlawyers—wrote up most criminal indictments in early America, such documents were mostly self-limiting in terms of length and complexity.  The takeover of the grand jury system by government prosecutors during the twentieth century led to an explosion in lengthy and complicated indictments.  Arguably, this phenomenon has also incentivized lawmakers to enact increasingly lengthy and complicated criminal laws.

Studies show that multi-count indictments greatly increase the likelihood of conviction.  According to Professor Andrew Leopold, criminal defendants who are tried on a single count are convicted by juries about two-thirds of the time.  Thus, some 33 to 35 percent are acquitted.   But those tried on more than one count are “more likely to be convicted of something.”  Even more significantly, writes Leopold, “as more counts are added, defendants [a]re also more likely to be convicted of the most serious charge against them.”

Today, roughly half of trial defendants are charged with more than one count, and a third are tried jointly with codefendants.   Indictments running to more than 50 pages and containing 80 counts or more are not unusual in federal court and in many state courts.   Some indictments are now so complicated that they begin with lengthy indexes or tables of contents.  The indictment against Ariel Castro was 576 pages long.

Multi-count indictments also provide a means for the government to evade the Speedy Trial Clause of the Sixth Amendment, a constitutional provision that originally acted as something of a brake on the charging decisions of prosecutors.  Generally speaking, a prosecutor in early America had to try his case within sixty days of filing criminal charges.  This was an ancient protection enunciated in the Magna Charta and probably predating it.

Under the Speedy Trial Clause’s original meaning, prosecutors would have been reluctant to bring complex or multitudinous charges.  But the Speedy Trial Act of 1974—passed by Congress in order to construe the Sixth Amendment right—allows the suspension of the right to a speedy trial upon the mere declaration by a judge that a case is “complex.”  Federal judges have not only upheld this Act; they have enthusiastically pronounced hundreds of cases to be complex for purposes of evading the Speedy Trial clock.  But the same judges who pronounce a case “complex” for purposes of gutting speedy trial rights generally pronounce the same cases to be not so complex as to require separation of counts or other limitations upon the prosecution.

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