Earlier this year, an accused crack cocaine dealer wanted to know how he was identified as a suspect in an undercover drug sting on the Northside. Facing a criminal trial, he deposed the detectives on his case and revealed for the first time how a controversial technology is being used by the Jacksonville Sheriff’s Office.

It turned out that police identified Willie Allen Lynch using a facial recognition database: software that uses algorithms to match photos of a person’s face with police and driver’s license photos.

One of every two Americans is in a facial recognition database, according to a report released last month by Georgetown University. Florida’s face matching system is the country’s largest and most active.

Using the technology, police can insert people with no criminal histories into virtual lineups without their knowledge and identify faces on social media or in protest crowds. The software has expanded swiftly to police departments around the country, and has been left virtually unregulated.

The Jacksonville Sheriff’s Office could not point to any policy guiding its use of the software, and declined to discuss the technology in detail.

Facial recognition software was never mentioned in Lynch’s arrest report. Instead, the Sheriff’s Office said it had identified him using a manual search of its mugshot database.

"It’s the lack of transparency and the lack of documentation that is truly concerning," said James Boyle, a criminal defense attorney.

Silent searches

The Sheriff’s Office is tapped into a database run by the Pinellas County Sheriff’s Office called the Face Analysis Comparison Examination System, or FACES. Law enforcement agencies around the state can access the database, which racks up about 8,000 searches a month. But the system is never audited for potential misuse, according to the Georgetown University report.

Despite the frequency of the searches, defense attorneys in Pinellas County and in Jacksonville had never heard about the technology, and had never seen it disclosed in court. That’s led to a looming question, one hinging on law enforcement’s legal obligation to provide evidence favorable to the defendant.

The software is not designed to say "no." Instead, it returns multiple potential matches. That means police and prosecutors could be learning of alternate suspects from searching the database without notifying defense attorneys, who would be legally entitled to that information.

The Public Defender’s Office in Jacksonville said it has never heard of the technology being used in the area, other than to identify Lynch. But the Sheriff’s Office said his case was not the first time it had deployed the technology.

To Boyle, that indicates untold numbers of Duval County defendants who never learned that the software was used to identify them.

"How many cases get pleaded out without taking depositions for all the witnesses?" asked Boyle, a former public defender and assistant state attorney. "And in all of those cases, how many of them use the technology and we have no idea about it?"

Jacksonville Sheriff’s Office spokeswoman Melissa Bujeda said that the use of the software is not tracked by the office. It’s unclear if the system is documented in any reports.

"It is a tool in our toolbox," Bujeda said. "Many tools are required to conduct an investigation and put a case together."

Bujeda referred further questions about the software to the Pinellas County Sheriff’s Office.

A ‘precursor’ in investigations

The Jacksonville Sheriff’s Office has said it is still testing the waters when it comes to facial recognition technology.

It is one of 40 law enforcement agencies in Florida that uploads its mugshots to FACES, a system it has accessed for about two years. But Celbrica Tenah, the office’s public-safety analyst supervisor, told a Georgetown researcher in February that the searches are a "precursor," something that can only be used in an investigation with additional supporting information.

"The hesitation they have with bringing it on as a formal investigative tool is that they haven’t been able to validate the system," researcher Clare Garvie wrote in her call notes from February. "They cannot speak to the algorithms and the process by which a match is made."

FACES searches more than 33 million people — 22 million from Florida driver’s licenses and more than 11 million law enforcement photographs, according to the Georgetown report. Police may also access the FBI’s database, which contains 24.9 million mugshots. All told, 243 state, local and federal agencies in Florida have access to the system.

It’s unclear whether the Sheriff’s Office plans to expand its use of the technology. Tenah told Garvie in February that the office was looking at vendors to establish an in-house face recognition process. But Bujeda, the spokeswoman, recently said the office has not bought software and is not actively pursuing vendors.

The Sheriff’s Office has no policy outlining how it can use the software.

Garvie, the researcher, said the danger posed by that is twofold. First, the public doesn’t know how the system is being used and what, if any, limitations are in place. Second, police agencies themselves don’t have that guidance.

"The technology fundamentally changes how police can interact with the public," Garvie said. "It allows them to identify people remotely, at a distance, which can affect how people feel comfortable in public places."

Without limitations, law enforcement can target individuals without reasonable suspicion, such as protesters. Police could then identify them to be charged for minor crimes, such as trespassing or blocking a public roadway.

"Most people would be shocked if police were allowed to walk through a protest and demand that people provide ID," she said. "And yet, face recognition doesn’t just allow police to ID people there, it allows them to do that in secret."

The technology certainly has the potential to chill free speech, law enforcement agencies themselves noted in a privacy impact statement written in 2011 by the Department of Homeland Security, the FBI, state agencies, motor vehicle and police departments.

Facial recognition can also be used in conjunction with Geofeedia, a social media monitoring tool already deployed by the Sheriff’s Office. The office noted in an annual report that it uses Geofeedia to monitor social media for various activities, including public responses to police shootings, which sparked wide-ranging protests in the city over the summer.

A ‘problematic’ arrest report

The Lynch case is one of the first in the country to raise legal concerns shared by defense attorneys and civil rights advocates over law enforcement’s use of the biometric software. It could also provide an explanation for why defense attorneys have not encountered the technology in police reports.

In Lynch’s arrest report, police wrote that he was identified using the office’s mugshot database: JPICS. But court documents showed that the prosecutor in Lynch’s said he was identified using "biometric software."

Bujeda, the Sheriff’s Office spokeswoman, said the technology was only one of multiple tools detectives used to identify the man in the photograph, which is why it wasn’t noted in the arrest report.

But for the arrest report to state that Lynch was identified using a manual mugshot search, rather than the facial recognition software, is what Garvie called a "parallel construction," or obscuring which investigative tool was relied upon. She said such a construction in an arrest docket would be "very problematic."

It could also provide an explanation, Garvie said, for why in 15 years of Pinellas County’s face recognition system, the public defenders there had never seen the use of the system disclosed as Brady material, or evidence that defense attorneys are legally entitled to get from prosecutors.

Fred Gazaleh, the director of felony courts at Jacksonville’s public defender’s office, said he was unsure if alternate matches would qualify as Brady material. He said he did raise the issue, but only after Tenah’s deposition had concluded.

"When everyone was relaxed, I did ask if something like that was disclosable," he said. "I never got an answer. I’m not sure the state has an answer."

Jackelyn Barnard, the director of communications at the local State Attorney’s Office, said the office does not comment on investigative tools used by law enforcement.

"As legitimate issues regarding technology arise, we litigate each on a case by case basis," she said.

Technology on trial

Despite being a longtime addict with no law degree, Lynch wrote a surprisingly well-crafted motion that zeroed in on the chain of events that led to his identification, gleaned from his depositions with detectives and Tenah.

On Sept. 28, 2015, Detective Frank Canaday had hit a roadblock, the motion said. Sixteen days after narcotics officers photographed a man selling $50 worth of crack to undercover police, the suspect had yet to be identified.

Canaday sent an email to Tenah, the motion said, containing three photographs, an address and a nickname: Midnight.

That same day, Tenah returned a potential suspect: Willie Lynch. FACES marked his mugshot with a star, indicating that it was a strong match, according to court records.

By the time Lynch’s trial started, he had ditched his public defender, according to trial trasncripts. He wanted to call Tenah as a witness to testify about how the match was made, but he didn’t have the power to subpoena her because he was not an attorney, the public defender’s office said.

The transcripts show that right before the trial, Judge Mark Borello asked Assistant State Attorney Brett Merneess whether photographs of multiple suspects were shown to the detectives, or just the photograph of Mr. Lynch.

Mereness answered that it was only Lynch.

"That’s the only photograph?" Borello asked.

Mereness answered that it was.

"That’s highly suggestive," said Lynch, who ultimately was convicted on a cocaine charge and sentenced to eight years in prison.

Boyle, the defense attorney, raised concerns along a similar line of questioning.

"Once they get the match, what are they doing with it at that point?" he said. "Are they using it? Are they properly ensuring the reliability of the subsequent identification? Are they properly documenting other suspects?"