Should Law Enforcement Use Facial Recognition to Identify Capitol Insurrectionists? Not According to EFF

Daniel Castro November 16, 2021
November 16, 2021

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Identifying and prosecuting those who participated in the January 6 mob invasion of the U.S. Capitol has become the number one priority for many federal, state, and local law enforcement agencies, as they seek to discourage others from ever repeating such an attack on the foundation of American democracy. Most Americans strongly support that effort. But the Electronic Frontier Foundation (EFF)—a digital advocacy group that routinely opposes using technologies in the public interest if they might limit individual freedom—has gone out of its way to attack law enforcement use of facial recognition technology to bring the insurrectionists to justice.

Less than a week after rioters broke into the U.S. Capitol, EFF published an article objecting to facial recognition “being used to determine who was involved.” Specifically, EFF opposed “law enforcement using facial recognition technologies to compare photos of unidentified individuals from the Capitol attack to databases of photos of known individuals.” Jason Kelley, a digital and campaign strategist on EFF’s digital activism team, wrote that the organization opposed law enforcement using any form of facial recognition, including using the technology to compare images of the insurrectionists with publicly available photos on the Internet or using the technology to compare images of the insurrectionists with photos in “government-controlled databases” such as mugshot databases or state driver’s license databases.

EFF’s position might be excused as simply a bad hot take before the true magnitude of the January 6 insurrection had come to light. Subsequent reporting has shown that the attack on the Capitol resulted in multiple fatalities, $30 million in damages, and more injuries to law enforcement officers than on any single day since the September 11 terrorist attacks. Yet as recently as a few weeks ago EFF staff attorney Adam Schwartz doubled down on the organization’s opposition to using facial recognition to identify the insurrectionists.

This continued defense is particularly notable because Schwartz called the attack “one of the most extreme crimes in our lifetime.” Apparently, there is no crime horrific enough that it would ever justify allowing law enforcement to use a computer to help search a database of photos for a suspect, witness, or victim—a process which would otherwise be done by a human, albeit significantly less efficiently, so it would impose no significant harm on personal privacy. EFF’s classic argument is that law enforcement use of technology represents a slippery slope—they would have you believe that a security camera outside a police station is just a pathway to law enforcement watching everyone through cameras in their bedrooms—and so nothing can ever justify starting down this path.

EFF tries to deflect criticism against its opposition to facial recognition by arguing that it is not impeding justice because law enforcement has many other tools at its disposal. But that claim is a crafty bit of misdirection, because EFF has opposed those tools too. For example, the FBI has executed search warrants to gather social media data from Facebook, but EFF has opposed government efforts to review publicly available social media information. Likewise, the FBI has used a “geofence” search warrant to locate everyone using a phone inside the Capitol, but EFF has repeatedly opposed these types of geo-fence warrants, including going so far as to demand that companies like Google refuse to comply with them. And the FBI has used data from license plate readers to identify out-of-state suspects who drove to Washington, D.C., but EFF has campaigned to restrict the use of automated license plate readers and delete the data so it cannot be used by law enforcement. So it is disingenuous for EFF to suggest that facial recognition is unnecessary because law enforcement has other means available when the organization actively opposes these other tools.

The FBI reports that over the past 10 months, over 675 people have been arrested for crimes related to the January 6 attack on the U.S. Capitol, including over 210 individuals who have been charged with assaulting or impeding law enforcement—and facial recognition has played a role in helping bring some of those individuals to justice. Yet many remain unidentified. As policymakers consider how to ensure law enforcement has the tools it needs to safeguard democracy in future elections, facial recognition should remain in the toolbox.