The Appeal: ‘Is This The Guy?’

“The NYPD also claimed that it was exempt from disclosing information about its facial recognition technology because doing so could imperil future investigations. It argued that because the department is only a user—not the creator—of the software, any disclosure would violate state protections of its partner’s trade secrets.

Alice Fontier, The Bronx Defenders’s Criminal Defense Managing Director, called this argument “absurd” and disputed the claim that Andre was known to the loss prevention officer. “If that is the basis, by that rationale, they could use that argument for anything — ‘we can’t tell you how or if it’s functioning because it’s not ours, we’re just using it,’” Fontier said.

The arguments over facial recognition technology in Andre’s case were never resolved. On the day that trial was about to begin, Bronx prosecutors decided to significantly reduce the charges against him from a felony to a misdemeanor with a sentence of time served. Andre had already spent several months in jail, so he took the deal rather than go to trial and risk significantly more jail time. Still, Fontier said she believed the police were “misleading” about how important facial recognition was to their case.

“My experience is if they are misleading in one case, it’s happening in others,” she said. “We just don’t know.”

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