Legal Aid Society's Chief Attorney Expresses Concern Over New Police Procedures
THURSDAY, NOVEMBER 18, 2010

Steven Banks, Attorney-in-Chief, expressed concern over the New York City Police Department's new procedure to photograph the irises of individuals who are arrested. The new program began on Monday. Banks appeared on CNN National, The Situation Room, and said that, " there’s been an extensive legislative debate in New York State in which the legislature only permits the police department to collect DNA evidence in certain kinds of cases, and so it’s incumbent upon the police department not to find a whole new technology and then forge ahead without any legislative authority."

Banks told The New York Times that “this is an unnecessary process. It’s unauthorized by the statutes and of questionable legality at best. The statutes specifically authorize collecting fingerprints. There has been great legislative debate about the extent to which DNA evidence can be collected, and it is limited to certain types of cases. So the idea that the Police Department can forge ahead and use a totally new technology without any statutory authorization is certainly suspect.”

The Situation Room
CNN National
November 17th, 2010 6:00 – 7:00 PM

Wolf Blitzer, Host: New York Police are looking into the eyes of criminal suspects with the help of electronic scanners, and that is sparking a serious debate. Let’s go to CNN’s Mary Snow; she’s in New York working the story for us. What’s going on, Mary?

Mary Snow, Reporter: Well, Wolf, if you ask the NYPD, they say there is no debate. It says it’s using this digital imaging technology because it’s accurate and quick, and its goal is to prevent mistaken identity. But some critics are raising concerns.

Tom Cruise made them famous in the sci-fi film “Minority Report”: iris scanners identifying people before they commit crimes. Police in New York aren’t doing that, but they are now using iris scanners after making arrests, which require fingerprinting and mug shots.

Police Officer: Just move in a little bit for us; keep your eyes open nice and wide, and we have an iris capture.

Mary Snow: The New York Police Department showed us what a suspect will not go through.

Police Officer: And just move out a little bit…there you go.

Mary Snow: Within seconds, an iris image is taken and stored.

Police Officer: Once we have you coming into the arraignment courtroom, we move over to the next station.

Mary Snow: In court, the suspect is again scanned. That image is then checked to see if it matches with arrest records in the system. A green box indicates it’s a match; red does not. Police say they’re trying to prevent suspects charged with serious crimes from swapping identities with someone charged with a lesser crime. The NYPD had two cases earlier this year where felons were able to slip through the system, and that’s why, they say, they decided to use these iris scanners. The city’s police commissioner calls it a common sense approach in a city where an estimated 400,000 arrests are made each year.

[to Ray Kelly] Why not just fingerprints? Because all the prisoners are also being fingerprinted, right?

Ray Kelly, NY Police Commissioner: They’re being fingerprinted, and they’re being photographed. This is an easier way of checking.

Mary Snow: But that way of checking concerns the head of the Legal Aid Society.

Steven Banks, The Legal Aid Society: There’s been an extensive legislative debate in New York State in which the legislature only permits the police department to collect DNA evidence in certain kinds of cases, and so it’s incumbent upon the police department not to find a whole new technology and then forge ahead without any legislative authority.

Ray Kelly: We are authorized to take pictures. This is simply a picture of your iris, and again, we’re matching that iris at the end of our process to see if you’re the same individual. Now, our lawyers say we don’t need any legal mandate to do it.

Mary Snow: One of the questions is, will this technology have other potential uses, such as a tool to track terror suspects? The police commissioner says it does have potential to do that, just like all technology, but stresses that is not the police department’s intention, that it’s being used to better identify suspects. Wolf?

Wolf Blitzer: Thanks very much, Mary, for that.

 

The New York Times
November 15, 2010
New York City Police Photograph Irises of Suspects
By Ray Rivera and Al Baker

The New York Police Department has begun photographing the irises of people who are arrested in an effort to prevent escapes as suspects move through the court system, a police official said Monday.

The program was instituted after two embarrassing episodes early this year in which prisoners arrested on serious charges tricked the authorities into freeing them by posing at arraignment as suspects facing minor cases. The occurrences exposed weaknesses in the city’s handling of suspects as they move from police custody into the maze of court systems in the five boroughs.

With the new system, the authorities are using a hand-held scanning device that can check a prisoner’s identity in seconds when the suspect is presented in court, said Paul J. Browne, the department’s chief spokesman.

Officials began photographing the irises of suspects arrested for any reason on Monday at Manhattan Central Booking and expect to expand the program to all five boroughs by early December, Mr. Browne said.

The department has been working on the program for months, Mr. Browne said. But the effort caught many in the city’s legal circles by surprise as news of it began trickling out late last week. It is raising concerns among civil libertarians and privacy advocates, who say the authorities’ cataloging of the new data could put innocent people under permanent suspicion. “It’s really distressing that the Police Department is once again undertaking a new regime of personal data collection without any public discourse,” said Donna Lieberman, the executive director of the New York Civil Liberties Union, “and we don’t know the reason for it, whether this is a necessary program, whether it’s effective to address the concerns that it’s designed to address, and whether in this day and age it’s even cost-effective, not to mention whether there are any protections in place against the misuse of the data that’s collected.”

Steven Banks, attorney in chief of the Legal Aid Society, said his office learned about the program on Friday in a phone call from the mayor’s criminal justice coordinator.

“This is an unnecessary process,” Mr. Banks said. “It’s unauthorized by the statutes and of questionable legality at best. The statutes specifically authorize collecting fingerprints. There has been great legislative debate about the extent to which DNA evidence can be collected, and it is limited to certain types of cases. So the idea that the Police Department can forge ahead and use a totally new technology without any statutory authorization is certainly suspect.”

Mr. Browne said a legal review by the department had concluded that legislative authorization was not necessary.

“Our legal review determined that these are photographs and should be treated the same as mug shots, which are destroyed when arrests are sealed,” he said.

The technology uses high-resolution images to identify unique patterns in the iris, the colored part of the eye. It is considered less intrusive than retinal scanning, which looks at patterns in the blood vessels in the back of the eye and can reveal information about a person’s health, raising privacy concerns.

The department’s collection and use of electronic data have long been controversial. A new state law forced the department to halt electronic storage of the names and addresses of people stopped under the stop-and-frisk program but not charged or arrested.

The iris database has other implications as well, potentially providing the department with a tool in the fight against terrorism. The military has been using similar biometric technology in Iraq and Afghanistan to develop a database of potential insurgents, though Mr. Browne said that the Police Department’s data was not intended for that use and that there had been no coordination with the Defense Department or the Federal Bureau of Investigation on the program.

Other police agencies and correctional facilities across the country also use iris recognition, though it was unclear on Monday how widespread the practice is.

Marc Rotenberg, the president of the Electronic Privacy Information Center, which focuses on emerging privacy and civil liberties issues, said that law and policy had developed over time on the collection of fingerprints, and more recently DNA, in the criminal justice system, and that iris scans fell somewhere in between.

“It’s a more accurate form of identification,” Mr. Rotenberg said of the scans, “but at the same time doesn’t raise the same privacy concerns that DNA data has.”

The program will cost the city $500,000 to implement and is being paid for through a grant from the Department of Homeland Security, Mr. Browne said.

In March, a suspect charged in a string of robberies, who had served time in prison for attempted murder, claimed to be another man, who was facing a charge of marijuana possession, as they were about to be arraigned on Staten Island. The ruse worked and the suspect, Freddie Thompson, was released and remained free for 56 hours before he was recaptured. Another suspect, Michael Bautista, who was facing charges of assault and criminal mischief in the Bronx, escaped in the same manner in February and remains at large.

Mr. Browne said he had no statistics on how often suspects had escaped in this manner, but he said the problem was not widespread.