EXCLUSIVE: The NYPD Is Using Sealed Mug Shots in Its Facial Recognition Program

Instead of being purged, old mug shots are being fed into NYC databases

Photo: belterz/Getty

In 1976, the state of New York introduced a law that says if a case “is terminated in a person’s favor or results in a non-criminal violation,” the records of the case shall be “sealed” and any photographs or fingerprints destroyed or returned to the accused. The legislation is meant to protect people from being further hounded by police based on a mere allegation.

Evidence has since emerged that those protections do not extend to mug shots used in facial recognition datasets. According to court records of an arraignment in the Bronx, at least one sealed mug shot has found its way into the New York City Police Department’s facial recognition database.

In November 2018, Claire Mauksch, a lawyer with the public defenders’ organization Bronx Defenders, picked up a felony case that struck her as odd. The previous day, a suspect had been arrested on felony robbery charges for an incident that had taken place two years prior. There was little information in the file to show why her client had been arrested after such a long delay. “In my experience, it’s pretty rare for there to be such a lengthy gap between incident and arrest,” Mauksch said.

“When records are sealed, all the details of the case, including a person’s mug shot, are off-limits for routine law enforcement purposes.”

At the arraignment, prosecutors for the Bronx District Attorney’s Office told the court that a new NYPD detective had been assigned to the case. Though a facial recognition search using surveillance footage had been conducted two years prior and resulted in zero matches, the new detective decided to run the program again. This time, the program matched surveillance footage to a sealed mug shot of the accused, the prosecutor said in court. But court records reviewed by OneZero indicate the mug shot came from a sealed arrest record.

“Images are sealed when the court sends a sealing notice and the NYPD complies with every one of those notices. When a mugshot is sealed it is unavailable in any database that FIS searches,” NYPD spokesperson Devora Kaye said over email. Though she did not comment on the specifics of this case, she added that, “facial recognition serves as a valuable investigative tool and helps the Department apprehend perpetrators of violence.”

Meanwhile, privacy advocates claim that feeding sealed mug shots into facial recognition databases violates state law.

“When records are sealed, all the details of the case, including a person’s mug shot, are off-limits for routine law enforcement purposes. Instead of destroying these records as required, the NYPD unlawfully added these sealed records to its unreliable and biased facial recognition database,” said Donna Lieberman, executive director of the New York Civil Liberties Union.

Jenn Rolnick Borchetta, deputy director of impact litigation at Bronx Defenders, echoed Lieberman’s concerns: “The NYPD is keeping photos in violation of New York law, and it’s running questionable facial recognition technology against untold numbers of photos that shouldn’t even be in the NYPD’s possession at all.”

Borchetta and Bronx Defenders are currently suing the NYPD, claiming that keeping sealed arrest records violates state law. The lawsuit alleges that between 2014 and 2016, the NYPD collected personal information from approximately 820,000 arrests — about half of which should have been sealed. More than 80% of these sealed records involve black or Latino people, Bronx Defenders said, adding that most of the arrests were for low-level offenses, such as subway fare evasion.

A state court judge recently rejected NYPD’s motion to dismiss the case. Bronx Defenders is currently seeking to have it certified as a class action case.

Though the revelation that sealed materials are being used for facial recognition databases is new, Borchetta said that the NYPD’s broad misuse of photos isn’t.

“The NYPD has been illegally using sealed photos for years. What’s new is that the NYPD’s massive technology apparatus can now make matters exponentially worse for anyone whose face is unlawfully being stored,” she said.

The NYPD’s facial recognition program has recently faced intense scrutiny from the media and privacy advocates. Last month, the New York Times revealed that the department had photos of New Yorkers as young as 11 years old in its facial recognition system. In May 2019, the department was criticized for employing facial recognition techniques like using celebrity photos as stand-ins in searches.

In one investigation that went viral, the NYPD used a photo of Woody Harrelson as a stand-in for an image of a suspect in a beer theft that was too grainy to run through the facial recognition system.

At the time, legal researchers for Georgetown University’s Center on Privacy wrote, “Unfortunately, police departments’ reliance on questionable probe photos appears all too common.”

The NYPD responded to its critics in a June 2019 New York Times opinion piece by police commissioner James O’Neill defending the department’s use of facial recognition. In the article titled “How Facial Recognition Makes You Safer,” O’Neill said that in 2018, the department’s Facial Information System generated 1,851 matches based on 7,024 requests and led to 998 arrests.

In April 2019, the DA dropped the case against Mauksch’s client.

“His shoulders dropped, and it seemed like a huge weight was lifted,” Mauksch said. “We high-fived, and he told me how happy he was that his life could go back to normal and that he wouldn’t have to keep coming back to court.”

A spokesperson with the NYPD did not respond when asked if the department will delete the mug shot of Mauksch’s client from its facial recognition database. Borchetta said she believes the department will delete the images only when Bronx Defenders wins its case against the NYPD and “the court orders that those photos be deleted.”

UPDATE 8/27/19: This piece was updated with comment from NYPD spokesperson.