In March, the Delaware State Police secured a $15,000 grant — funded through the state's civil asset forfeiture revenues — to purchase the facial recognition software Clearview AI, which will enable the agency's biometrics unit to compare investigative images to an open-source database of images scraped from the internet.
Prior to the purchase, the agency had access to state and federal mugshot databases to identify suspects in investigative images.
But as facial recognition software has advanced, its use by law enforcement has faced scrutiny from civil liberties groups. Beginning in 2019, more than two dozen state and local governments — including Virginia and California — adopted rules restricting or prohibiting the use of facial recognition software by law enforcement, though some jurisdictions have since rolled back those restrictions.
Clearview AI, which compares investigative images against open-source images, is particularly controversial — in large part because the company’s database includes billions of images scraped from social media without their owners’ consent.
Other critics contend that Clearview AI is less accurate when matching images of people with darker skin tones, though recent tests by the Department of Homeland Security found facial recognition tech has become more accurate in the half-decade since its introduction.
In 2022, a lawsuit by the ACLU of Illinois forced Clearview AI to stop selling licenses for its product to private companies and individuals entirely, leaving public agencies as its only remaining market.
But Delaware lawmakers have not adopted any restrictions on use of facial recognition, nor have any Delaware municipalities.
Though the group does not have an official stance on the use of facial recognition technology by law enforcement, Delaware's Coalition for Open Government has raised some concerns about the purchase of Clearview AI by the Delaware State Police, citing the lack of transparency inherent in the use of privately owned software by public agencies.
“When we’re talking about facial recognition or the use of AI through private contracts, that means there are proprietary algorithms being used that cannot be disclosed to the public, preventing public oversight," said Coalition President John Kowalko III.
Kowalko also noted that in the absence of an external oversight structure, Delaware residents and lawmakers cannot confirm that the Delaware State Police will comply with their agency's internal policies on the appropriate use of facial recognition software.
“That should be a concern for all members of the public – that this technology is being used in a way that they will and can have no idea about," he said. "If we’re going to use that type of technology, there needs to be a strong regulatory scheme and oversight structure in place to make sure that use is appropriate.”
State Rep. and House Judiciary Committee Chair Sean Lynn (D-Dover) also raised objections to the purchase, arguing that Clearview AI's data-gathering practices are inappropriate — in part because the company does not distinguish between images of adults and images of minors.
But the Delaware State Police maintain that their agency has taken precautions to limit the use of the technology and avoid civil liberties violations.
“We have limited the use of this technology to trained facial recognition examiners only," said State Police spokesperson Sgt. India Sturgis. "While its use can aid in identifying individuals suspected of committing crimes or preventing criminal activity, DSP personnel cannot make arrests based solely on the use of this technology. Facial Recognition Technology will certainly improve crime prevention and aid law enforcement personnel with their investigative efforts, thereby enhancing the safety and security of Delaware.”
Meanwhile, the use of facial recognition technologies by Delaware law enforcement agencies may continue to expand: as of 2023, at least six local police departments across the state already partner with Amazon's Ring doorbell service, which has also sought patents for facial recognition technology.
