Francisco Arteaga was in jail for a court appearance last fall when he noticed a large man glaring at him from the other side of the courthouse's holding cells.
“This guy's arms look like this,” Arteaga said, picturing an imaginary Popeye's biceps in the air. “No neck. Bald, shiny head. Looking at me with this mean look on his face. I'm like, 'Oh my God!' He walks up to me and he says, 'Is your name Arteaga?' I say, 'Yes.' He opens his big arms and gives me a hug. He says, 'Thank you, thank you so much! Thanks to you, I can go home!'”
It's been 14 months since the verdict that made Arteaga a celebrity, at least among civil rights activists, New Jersey lawyers and defendants who have found themselves in legal trouble because of facial recognition technology.
Police relied on the technology to identify Arteaga as the prime suspect in a 2019 armed robbery of a Hudson County cellphone store. He denied any involvement, police had little other evidence, and Arteaga, a Queens native, claimed he'd never even been to New Jersey. But police charged him after facial recognition software matched his mugshot to grainy surveillance footage of the suspect.
Mr. Arteaga challenged his arrest, demanding detailed information about the technology police relied on to identify the suspect and hoping to expose its flaws and exonerate himself. Last year, a state appeals panel ruled that Mr. Arteaga was entitled to access the materials through discovery, and he won his case.
The ruling could have been a landmark for criminal justice reformers, offering hope to defendants like Arteaga and his large, bald cellmate who have been charged with cases that actually don't exist because of digital reasoning.
But at least in Arteaga's case, prosecutors said they could not reveal details about the facial recognition technology that led to his indictment, primarily because the match was conducted in another state, outside the prosecutors' jurisdiction and the jurisdiction of the New Jersey Court of Appeals.
By that time, Arteaga had been in prison as a pretrial detainer for nearly four years. Rather than remain in prison continuing his fight, he pleaded guilty, thinking of his young son, teenage daughter and fiancée.
“I'm like, am I going to take a gamble when I have kids? As a father, I see my kids hurting. I'm hurting too, but I can hurt, you know? I can deal with that. But when I see my hurt affecting my kids, that's what I have to do as a father. I have to get home to my kids,” he said.
Arteaga's experience highlights a widening gap between regulation and oversight as law enforcement increasingly turns to new technological tools to solve cases that traditional investigations can't solve, said Dillon Reisman, a New Jersey attorney with the ACLU who specializes in surveillance, artificial intelligence and other new technologies.
Policymakers' failure to close these gaps puts everyone at risk of wrongful arrest and prosecution, Reisman added.
“What this really wakes up to is the threat of unchecked surveillance power and the acquisition of all of this surveillance technology without any framework of accountability,” Reisman said. “All of these systems, by their very nature, involve cooperation between states and systems that are larger than any one agency, making it extremely difficult to have transparency, to understand how the systems are being used, to understand potential flaws in the systems and to campaign against them.”
West New York Police arrested Francisco Arteaga for armed robbery at Buena Vista Multi-Service on Bergenline Avenue. (Dana DiFilippo | New Jersey Monitor)
“Window shopping for suspects”
The appeals court decision reveals how Arteaga became a target of law enforcement.
The day after Thanksgiving in 2019, a gunman entered a Buena Vista Multi-Service store on Bergenline Avenue in West New York, struck a store clerk with a handgun, and fled with $8,950. The clerk described the gunman as a “Hispanic male wearing a black skull hat.”
Western New York police officers submitted images from store and local surveillance cameras to the New Jersey Regional Operational Intelligence Center, a division of the state police, for facial recognition analysis. Investigators there found no match but offered to revisit the case if detectives provided better images.
Instead, detectives sent the raw footage to the NYPD's Real-Time Crime Center, where detectives captured several still images and compared them to the center's database, which identified Arteaga's mugshot from December 2019 as a “potential match.” Employees, including two who weren't at the store at the time of the robbery, identified Arteaga from the photo stack as the robber. Arteaga's mugshot had been stored in the NYPD system for two non-robbery convictions in New York from several years ago.
The detectives' decision to refer the case to the NYPD indicates they were “searching for a suspect,” Arteaga said.
“The police said, 'Well, let's send them to New York for no reason, throw out the state experts, go to other states and start investigating with their pool right now,'” Arteaga said.
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Arteaga had an alibi — he told police he was visiting relatives in Croton-on-Hudson, Westchester County, on the day of the robbery — but police charged him and a judge ordered him held in the Hudson County Jail until trial.
Defense attorneys have filed motions seeking information about the facial recognition software that identified Arteaga, including its name, manufacturer, algorithms, error rates, and source code, as well as the qualifications of the analyst who conducted the search, details of the mugshot database from which the analyst obtained Arteaga's photo, and any changes the analyst made to security camera stills to improve the likelihood of a match.
In May 2022, a judge denied the motion, and Arteaga appealed. In June 2023, a three-judge appeals panel ruled in favor of Arteaga and sent the case back to the trial court, instructing the judge to order the prosecution to provide the information sought by the defense.
“In this case, the matters sought by the defense are directly relevant to testing the reliability of the FRT and have a bearing on the defendant's guilt or innocence. Given the novelty of the FRT, no one, including us, can reasonably conclude, without discovery, whether the evidence is exculpatory or 'merely potentially useful evidence,'” Judge Hany Mawla wrote.
Maura cited a 2021 state appeals court decision that said courts must strive to understand new technology and give the defense a meaningful opportunity to fully consider it.
“The defendants must have the wherewithal to impeach the state's case and raise a reasonable doubt,” he wrote.
The prosecution did not appeal the verdict, so it became legally binding.
Tamar Lehrer heads the forensic science division of the New Jersey Public Defender's Office. (Dana DiFilippo | New Jersey Monitor)
State public defender lawyers who represent people identified by facial recognition software say they face the same problem as Arteaga: Prosecutors have a constitutional obligation to provide exculpatory evidence to the defense, but they say they don't have information about the technology behind the cases, said Tamar Lehrer, head of the public defender's forensic science division.
“Not providing it is a violation of due process,” Lehrer said. “The state is still using facial recognition technology, but I know that this disclosure information is not being provided to attorneys. When attorneys ask for it, they are told they can serve the subpoena themselves. So there is a systemic problem with this decision not being followed.”
To further complicate things, some facial recognition developers require customers to sign non-disclosure agreements to protect their products from competitors. That secrecy has led to several lawsuits against the NYPD, which was ordered to release records in 2022 that revealed the department had used Clearview AI, a controversial facial recognition technology that former New Jersey Attorney General Gurbir Grewal banned in 2020.
“Law enforcement is well aware that they are using covert tools,” Arteaga said, “so when they target someone with a covert software recommendation, they're totally out of luck.”
Lehrer said her office is “waiting to see what happens next.”
“The Department of Defense should not be a regulatory body,” she said.
The owner of the West New York store did not respond to New Jersey Monitor's request for comment, and a spokesman for the Hudson County Prosecutor's Office declined to comment.
In February 2022, the New Jersey Attorney General's Office began soliciting public input on facial recognition technology to help develop statewide policy on law enforcement's use of the technology. Michael Simmons, a spokesman for Attorney General Matt Platkin's office, said no action has been taken since the public input request.
The department doesn't know how many agencies in New Jersey are using the technology, Simmons added.
Reisman said the need for policymakers to act becomes more urgent as the industry expands.
“Facial recognition has been a subject of computer science research for over 30 years, but the past decade has seen an explosion in the number of companies offering these services and in federal funding to local and state governments to deploy these systems. A lot of money has been poured into these tools, but not enough thought has been given to the necessary controls and safeguards,” Reisman said. “This is a scary situation for states.”
Francisco Arteaga (Dana DiFilippo | New Jersey Monitor)
Arteaga considers himself a “hostage” over his time in prison, where conditions are notoriously harsh, and since his release in November he has been working to rebuild his life.
He studies holistic medicine online, sells health and nutrition products, works as a gym teacher at a senior center in Queens, and now lives in Union City to accommodate his monthly meetings with his parole officer, and sees his son and fiancée, who still live in Queens, every few weeks.
Although he won his appeal, he said he felt like he'd won the battle but lost the war.
“People say, 'Hey, your case went well, why didn't you fight it to the end?'” Arteaga said. “My question to them is, 'What would you do if you were me?'”
He wants someone else to take over the fight.
“I made putts close enough that someone else could have sunk them,” he said.
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