In December 2021, the Española Police Department purchased a new subscription for facial recognition software from New York City firm Clearview AI, according to city receipts and documents.
For a first-year introductory rate of $2,695.50 — or 0.1 percent of the Public Safety budget for Fiscal Year 2022 — the Department has gained access to a powerful search engine that can quickly identify an anonymous individual from a single image by using artificial intelligence and a massive photo database.
Clearview AI would not state how many law enforcement agencies in New Mexico use its software, although Albuquerque Police Department reportedly uses facial recognition software of some kind.
“This is a tool that we’re using right now in the best interest of the community for solving crimes, to increase our crime solveability rate,” Department Public Information Officer Lieutenant Jeremy Apodaca said.
Clearview AI’s uniquely expansive approach to internet data extraction has drawn mounting criticism, litigation and outright bans around the world.
Entities such as the American Civil Liberties Union and Amnesty International claim that Clearview AI’s product constitutes an unprecedented breach of privacy and a potential leap toward government mass surveillance.
Clearview AI, founded in 2017, claims to have built “the world’s largest facial network,” which it says can be used to identify perpetrators and victims of crimes as well as for identity authentication. According to the company, Clearview AI’s software performs searches on images or video screenshots provided by law enforcement officers and generates accurate matches through its proprietary image-search technology. The program provides search results from its vast database, which the company’s website claims comprises more than 10 billion images. Clearview AI harvests these images and accompanying data — and has for years — from social media profiles (like Facebook, Instagram and Twitter), news articles, personal and professional websites, criminal databases, public records sites and other internet sources.
The Department’s Clearview AI subscription included access for 12 employees — user accounts for five detectives, four sergeants and two lieutenants and one administrator account assigned to Department Records Supervisor Francisco Galvan — according to emails between Police Chief Roger Jimenez and Clearview AI representatives.
Clearview AI CEO Hoan Ton-That wrote in an email that each search on the software is recorded and logged and “a law enforcement customer must supply a case number and crime type, before uploading a photo for a search.” An administrator account, he wrote, can generate an audit report to ensure the software is being used appropriately.
No searches yet
Apodaca said, to his knowledge, no searches have been performed yet on Clearview AI software by any of the Department’s accounts.
The Department does not currently have a policy in place for the use of the software, Apodaca said, but it is currently in the process of rehauling policies in general.
“We haven’t finalized any of it yet, but it will include policy on this and lay out the criteria and process for the administrator in the program,” Apodaca said, adding that such a policy might limit the use of facial recognition software to felony-status cases.
Before finalizing the contract with Clearview AI, the Department received standard approval from the City’s legal counsel, Long, Komer & Associates. Attorney Jonas Nahoum confirmed that he reviewed the contract and did not have any significant concerns.
“I suppose defense attorneys may make an issue about the gathering of that information based on the Fourth Amendment,” Nahoum said, “But since it’s being taken from the public sphere, the test here is expectation of privacy. We were comfortable that no laws were being violated in the process the city agreed to.”
The Department’s acquisition of facial recognition software is its second recent investment in artificial intelligence, coming shortly after the implementation of automatic license plate-reading cameras. That system, purchased from Flock Safety with grant funds from the Department of Justice, tracks vehicles using smart cameras mounted at various points around the city.
Apodaca said he believes Clearview AI’s software will similarly aid investigations, adding that the Department’s license plate readers helped to identify a possible suspect vehicle in the case of an ATM robbery about a month ago.
“It doesn’t solve the crime for us,” he said, “but it helps add to the footwork that we’re doing.”
Regarding police use of facial recognition technology, Nathan Wessler, Director of ACLU’s Speech, Privacy and Technology Project, said it’s dangerous both when it works and when it doesn’t work.
“It gives the government an unprecedented power to instantaneously identify, track and learn things about all of us at very low cost and very high speed,” Wessler said. “It is fundamentally incompatible with a free, democratic society.”
Local legislatures have banned law enforcement use of facial recognition technology in at least 22 U.S. cities and towns including Boston, Massachusetts; Minneapolis, Minnesota and Jackson, Mississippi. The state of Vermont also passed such a ban in 2020. In the last year, Clearview AI has faced orders to stop harvesting data, along with steep fines, from Australia, France and the UK.
Unlike other facial recognition companies, which supply the algorithm for agencies to use with their own mugshot or driver’s license photo database, Wessler claimed Clearview AI is unique as a provider of a giant web-sourced image database that can “not just identify us but chart an incredible history of where we’ve been online.”
Civil rights lawyer Ryan J. Villa, of Albuquerque, said that like a lot of tools for law enforcement, facial recognition technology can be useful, but there need to be checks on it.
“There is probably some legislation due on this,” Villa said. “It shouldn’t be enough for probable cause, and it shouldn’t be enough to arrest or charge a person.”
Company CEO Ton-That maintained that “Clearview AI’s dataset is collected legally from publicly available information” and that search results “are not intended nor permitted to be used as admissible evidence in a court of law or any court filing.”