Friday, January 7, 2022
Eldar Haber (University of Haifa - Faculty of Law) has posted Racial Recognition (Cardozo Law Review, Vol. 43, No. 1, 2021) on SSRN. Here is the abstract:
Recognition technology is becoming an increasingly important part of criminal law enforcement. With new developments in biometric identification and artificial intelligence, law enforcement agencies are increasingly positioned to identify culprits by algorithmically analyzing physiological and behavioral characteristics, such as faces, voices, or bodily gestures, of suspects and matching them to troves of data from various sources. While promising, the use of recognition technology, and more specifically facial recognition, negatively impacts human rights and liberties. As recognition technology has been systematically proven to be less accurate when identifying some cohorts, including black people, the use of recognition technology raises concerns of misuse and social control over marginalized and over-policed communities, especially black people, within what this Article coins as racial recognition, duplicating and amplifying structural inequities in society.
This Article offers a theoretical and practical analysis of racial recognition. Upon such analysis, it will offer a conceptual blueprint for policymakers on how to optimally regulate its use by criminal law enforcement agents. It begins by providing a general taxonomy of criminal enforcement and technology, focusing on biometrics and recognition technology. Then, the Article introduces and analyzes the rise of racial recognition—how recognition technology and its use by enforcement agents could be embedded with racism. The Article then turns to discuss the current and optimal regulation of racial recognition, while offering viable solutions to this conundrum. Upon concluding that the current legal framework is insufficient in regulating misuse of recognition technology against marginalized and over-policed communities, this Part turns to offer viable solutions for policymakers to properly legalize the use of recognition technology in the near and inevitable future.