Police Sued for Blatant Misuse of Facial Recognition. It's NUTS.

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:03 Jenessa: It has always been an issue that the police department gets new technology and treats it like it's magic.

0:00:17 Jenessa: It takes two dummies in your state. And if we start nationalizing this stuff, which they are doing, two dummies in the whole country could ruin your whole life with this.

0:00:34 Thomas: Hello and welcome to Opening Arguments. This is episode 1288. I'm Thomas. That over there is real life attorney, Jenessa. How are you doing?

0:00:39 Jenessa: I'm doing pretty good. I saw a meteor shower last night, so that was nice.

0:00:43 Thomas: Well, I know you're doing well because I'm watching you on my flock camera that I've got to track your every movement. I don't know why. I got too much to do to stalk anyone. It's a commitment. I was going to stalk you, but it's just too much work. So just pretend I did.

0:00:58 Jenessa: God. You know, I passed a billboard today that said, beyond a reasonable doubt, Jesus Lives. And I was like, you know, there really is just like legal lingo happening everywhere and just feeling watched everywhere.

0:01:13 Thomas: That's an interesting one. That's a good one. I like that they use the criminal standard for Jesus. It's good.

0:01:19 Jenessa: It's a fun one. It is funny. I notice it more and more now as I'm driving along. I'm like, oh, camera, camera. Camera. Look at that. Another camera.

0:01:28 Thomas: Yeah, man. Yeah, it's definitely a huge topic right now. And it seems like people are attacking them. People are doing all kinds of stuff. And so I think that's why we've been doing a broad series on privacy and all that. So what do you have for us today?

0:01:40 Jenessa: Recently, we talked about it from the Fourth Amendment angle with criminal cases and excluding evidence. What I want to dip into now is the civil angle, and then hopefully next we'll talk about legislative and administrative issues that are going on. But we've got some big civil lawsuits that are trying to approach this issue. Your data privacy, the surveillance state, The way that police are implementing not just surveillance, but like big data surveillance, the way that they are collecting all of this data on you. We have a lawsuit out of the ACLU. I kind of just have to read verbatim like two thirds of this lawsuit. You're not going to believe how wild this complaint is. But I think it's important that it's not just one wild thing that happened. And yes, this man deserves justice. It is a microcosm of a bigger problem, and the ACLU lawyers will do a really good job of laying out why this is foreseeable, the way that innocent people are getting wrapped up in these systems. It's foreseeable. It's predictable. It is going to happen again. This is not a one -off incident, so we will talk about one extreme incident, but we should anticipate that this will keep happening unless somebody does something. Thing. We will spend quite some time on that one, and then we'll see what we've got time for. There's some additional lawsuits we could talk about on this theme.

0:02:17 Thomas: Day. Wow. Awesome. I love a good, you're not going to believe this fact pattern lawsuit thing because it's true. I will not believe it. They are often, it's crazy. And you know, with some stuff, it is one we're hearing about. You don't know how often stuff like this is happening. And it's like with how few people have the wherewithal, as I always say, to actually afford to pursue things legally. Who knows?

0:03:44 Jenessa: Exactly. It's really great that this plaintiff is advocating for himself. And of course, I mean, groups like the ACLU are not like, you know, out there to make the big bucks. They're out there to make a change. But not everybody even knows how to find the ACLU. Like, do you even know how to access these rights? It's really important. I am hopeful that this case could set precedent about the way that police departments are allowed to engage in these kind of investigations. Particularly in this case, facial recognition and the way it gets abused.

0:04:18 Thomas: All right. Well, I'm looking at all my camera feeds and I'm seeing our listeners are ready for us to take our first break and get to it. So I guess we should do that. Support all this AI driven cyber stalking at Patreon. No, I shouldn't say that. Get rid of the ads at patreon .com slash law, support the show, get the lot off of movies, all that stuff. We'll take a break and then we'll dig into it.

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0:04:45 Thomas: Okay. Where, where's our fact pattern begin?

0:04:48 Jenessa: Our little cast of characters here we've got our plaintiff Robert Duane Dylan a 52 year old resident of Fort Myers. This is Florida. Defendant first defendant city of Jacksonville Beach is a Florida municipality if you know Your Florida geography which I did not prior to reading this Jacksonville Beach nowhere near Fort Myers that is going to be relevant the Jacksonville Beach Police Department is a department of the city of Jacksonville Beach, so that's why they're a defendant. Defendant Scott O'Connell, he's going to be one of our police officers who is among the more important people here. Primary investigator in the case resulting in Mr. Dillon's wrongful arrest. Defendant T.K. Waters is a sheriff of Jacksonville, sued in his official capacity. Works for the Jacksonville Sheriff's Office. It'll be JSO through the rest of this document. And then, importantly, there is Waters, the sheriff, and Walters, a sergeant who works at the sheriff's office. Very easy to mix these two up. Walters is going to do some not great police work. Waters is going to be mostly accused of failure to supervise and failure to train on this, but otherwise he'll have some pretty good quotes about why you should not do what his inferior officer did in fact do.

0:06:27 Jenessa: Basically, we've got Dylan up in Fort Myers, our plaintiff, and then we've got the rest of this happening down in Jacksonville Beach, which is in Pinellas County, Florida. Okay, What happened here?

0:06:25 Thomas: I I don't know. You tell me.

0:06:41 Jenessa: The fact pattern starts with a section titled The Incident at the Jacksonville Beach McDonald's.

0:06:48 Thomas: I already love this.

0:06:49 Jenessa: It sounds like a really pretentious title of a play.

0:06:53 Thomas: Or like one of the chapters of like Stranger Things or something, you know? Yeah. Hmm.

0:06:57 Jenessa: Yeah, yeah. The incident. The crime sounds really gross. It's not going to end up being like gross or gory or anything terrible happens. It is like almost something terrible happened. So don't worry. Shortly before midnight on November 2, 2023, Jacksonville Beach PD officer Kevin Thompson, not one of our defendants, responded to a report of an individual attempting to lure or entice a minor inside a McDonald's restaurant in Jacksonville Beach.

0:07:28 Jenessa: Thompson spoke with the victim, a girl under the age of 12. The victim stated a man had repeatedly asked her if she wanted to leave the restaurant with him. She told him no. The suspect approached her a second time and asked, are you sure? The victim called her mother and the suspect left. So A -plus on the kid.

0:07:46 Jenessa: Knew what to do. Great job. The victims parents were at the Element Hotel next door. So basically they were like, yeah go to the McDonald's next door, what's the worst Worst thing that could happen. My worst nightmare is what could happen."

0:07:55 Thomas: Yeah. Jesus. Bad luck. Oh, wait, they are in Florida. So this is actually the average Florida experience. So actually sorry

0:08:03 Jenessa: Oh, God. Everything about this is just tragically Florida, unfortunately. Sorry, Florida listeners, but good God. Okay. Yeah. Thompson kind of does what you'd expect. He speaks with staff members. Employees did not observe the interaction between the suspect and the victim. They stated they could tell by the victim's demeanor that she was not comfortable. Staff could not provide surveillance footage at that time. Thompson gave the victim's father a case information card, left the restaurant.

0:08:10 Thomas: Not sorry hmm

0:08:33 Jenessa: Okay, first day, we're just getting some information. Cool. Next morning, November 3rd, Jacksonville Beach PD officer David Cohill, also not a defendant, spoke with Kaylee Kleinbell, a McDonald's employee who was not present the night of the incident. She provided access to surveillance footage. Cohill described in his reports the footage showed a white male wearing a black jacket with a fur -like fringe around the collar and sleeves he waits for his order notices the victim checks his surroundings before approaching and speaking to her okay perfect like super creepy and like the guy yeah yeah

0:08:32 Thomas: Yeah already arrest that guy yeah if you see unless you're checking to see like where's this person's parents it's Florida you can't have a kid in Florida you know but it's hard to

0:09:16 Jenessa: So upon information and belief the suspect had placed his order online or using a mobile application because he did not place the order at the counter. Yeah, he walks in, waits, picks up an order, and leaves without ever ordering. He must have placed it online or on a mobile app.

0:09:28 Thomas: Differentiate hmm okay oh gonna do the things we talked about last time

0:09:39 Jenessa: One would have thought, Thomas, it's only going to get worse.

0:09:43 Thomas: Now the stuff where it's like all right I want every single order from this McDonald's in this time or whatever, right?

0:09:49 Jenessa: God, I wish you were right.

0:09:49 Thomas: Like that kind of surveillance stuff. Oh, I'm not right. Okay.

0:09:53 Jenessa: Oh, how I wish you were right! That would make sense, right? Upon information and belief, mobile orders through the McDonald's application require an account linked to a payment method, a phone number, email, or all three. These records could have been used to identify the actual person who placed the order.

0:10:11 Thomas: Oh I guess that isn't quite what was last time because last time it was like, no, it wouldn't be just asking the McDonald's equivalent. It would be asking the cloud like, all right, everyone who who was anywhere near this right

0:10:22 Jenessa: Yeah, yeah, anyone who was in a football field radius of the McDonald's for two hours. This would at least be a little more targeted if you were like everybody who placed an order in that time window, right? It's not exactly exigent circumstances. We're not like trying to find a kidnapped kid but I mean a guy who just tried to kidnap a kid like that feels it's emergency adjacent exactly exactly he might try again

0:10:44 Thomas: It's not not an emergency yeah yeah hmm

0:10:50 Jenessa: Tomorrow yikes right upon information and belief jacksonville beach pd personnel never requested or obtained mobile ordering records payment data or online account information from mcdonald's just didn't even try I didn't ask nothing. Cohill attached to his report two photographs he had taken with his cell phone. Upon information and belief, these photographs depict a computer screen displaying the McDonald's surveillance footage.

0:11:03 Thomas: Weird

0:11:21 Jenessa: Not the McDonalds footage. It's a photo from his camera of the footage on a computer in the McDonald'S.

0:11:20 Thomas: Huh

0:11:30 Jenessa: Good question. Question the photo they will then use to

0:11:38 Thomas: But but why like that's the evidence they ended up with

0:11:40 Jenessa: Try to do identification upon information belief the photo they're going to use is that an already blurry the suspect image is low resolution the suspect's face is partially shadowed and off axis which what that means is he's not looking dead at the camera and it's not a perfect profile either it's like angled from the top or angled from the bottom you know angles that aren't great for figuring out who somebody is in the first place. So it's already not a great image. And then on top of that, instead of getting the surveillance footage and at least having that crappy image, the image they will use is he holds his cell phone up and takes a picture of a computer screen.

0:12:17 Jenessa: You don't even have to know anything about computers. If you've ever taken a picture off a computer, you don't have to computer screen, you know what happens. It looks like crap.

0:12:25 Thomas: It actually depends on if it's depends on whether it's a CRT monitor or if it's the newer kind the newer kinds actually look look okay, but we'll assume they had some old shit or something.

0:12:35 Jenessa: Later they will tell us there are a number of screen glare and color distortions that appear to be because it is a cell phone photo of the photo. So that's November 3rd. Cohill comes in, talks to some people, takes a picture of a picture, and then leaves. On November 9th, Jacksonville Beach PD assigns Officer O 'Connell as the primary investigator. That is one of our defendants. 4 p .m. that day, he goes to the McDonald's. He speaks to Brenda Wilson, an on -duty restaurant manager. Wilson Wilson says she's familiar with the case. She'd been working the night of the incident. She was occupied with her duties. She did not see or hear the suspect's statements toward the victim. She got a weird feeling about his interactions with her.

0:12:44 Thomas: Gotcha. Hmm.

0:13:21 Jenessa: Hey, that's, you know, circumstantial, but it's not nothing. She stated she had seen the suspect in the restaurant several times before and referred to him as a, quote, regular customer who often appeared to be under the influence of narcotics okay we've got a little information about who this guy not

0:13:39 Thomas: Police are like, God damn it. That's still the average Floridian man. Could be any of us.

0:13:45 Jenessa: Narrowing it down a ton despite being told by the mcdonald's restaurant manager that the suspect was a regular customer there upon information and belief mcconnell never reviewed older surveillance footage from the mcDonald's to locate prior visits by the suspect which could have yielded higher quality images and additional information. Like, yeah, when does he come by? On what days?

0:13:45 Thomas: Yeah. Why?

0:14:08 Jenessa: All kinds of, you know, true crime. Do detective work. Like what do we know about this guy? Nothing. As far as anybody knows, doesn't obtain any other surveillance footage. Everything's upon information and belief. We'll give you an opportunity to deny it or affirm it. They don't check the loyalty program, prior transactions, mobile ordering history, none of it.

0:14:31 Jenessa: Why? Good question. I'll tell you why. Because computers are magic and I don't need to do any research. Yeah. 4 .45 p .m., he attempts to contact the victim's father by telephone, gets a voicemail. 5 p .n., he searches booking photographs and the Duval County Sex Offender Registry doesn't get anything. November 15th, gets a call from the victim. The victim's mother doesn't obtain any new information. He can tell you what his child said the guy looked like. That's pretty much it, right?

0:15:02 Thomas: Yeah?

0:15:03 Jenessa: On the 22nd of November, O 'Connell goes back to the McDonald's. Ms. Wilson stated the suspect had not returned since the incident, which she described as unusual, given he was a regular. The fact that he has stopped visiting, it's consistent with the idea of a local who's now deterred by this police response. What we now have is it's wholly inconsistent with the suspect being Mr. Dillon, who lived 300 miles miles away.

0:15:30 Thomas: You know, regular.

0:15:32 Jenessa: It's going to be a problem, right?

0:15:32 Thomas: You know, once upon a time, I was a fan of McDonald's, but Steve and I wouldn't drive 300 miles to go to a special certain McDonald's.

0:15:43 Jenessa: One imagines somewhere in that 300 -mile range there is another McDonald's.

0:15:49 Thomas: Famously, there's quite a few of them.

0:15:51 Jenessa: Yeah, doesn't really line up with the idea that he would be a regular at this place.

0:15:56 Thomas: Huh. Wait, how did we get here? Just whatever photo of something identified?

0:16:02 Jenessa: So they have not yet identified him. We're building towards that. On the 22nd, he just finds out from the manager, yeah, that regular hasn't come back. Kind of weird. It's weird to me that I haven't seen him in two weeks. 27th, O 'Connell distributed an attempt to identify Bulletin. And it includes the images that are the cell phone picture of the computer screen, which has blurry surveillance footage. And that goes out to associated, you know, neighboring agencies, that kind of thing. We send that out. And then what is going to happen? Defendant Walters, that's a guy who works at the sheriff's office. He gets this attempt to identify Bulletin. And what does he do? He feeds this image into a facial recognition software database that they have. He does no assessment of is this meeting minimum quality standards for reliable recognition, the lighting, the axis orientation. There's a really important thing, the interpupillary pixel count. One of the best ways to identify a face, you age, you put on makeup, you get scars, all kinds of things about your face change. But the distance between your pupils is just like that is the shape of your frickin skull.

0:17:24 Jenessa: Go it's not going to change over time

0:17:26 Thomas: Basically, if this was Anya Taylor-Joy, she's, you're not. Oh, sorry. I forgot what show I'm on. If this was any Taylor -Joys, she'd be in the show. She's getting caught anywhere. Where there's no other person that could be that it's like three to four feet between pupils yeah

0:17:36 Jenessa: Right right it's a really reliable like a thing that doesn't change over Time on your face once you're an adult obviously babies all look the same as far as I can tell

0:17:47 Thomas: Cut to the suspect like crossing his eyes as hard as he can in the identification line

0:17:54 Jenessa: Um so yeah there's like standards for a minimum number of you know if If there was two pixels between the pupils, there's no way there's enough information elsewhere on the face to get anything, right? Critical thing to just keep in mind here. You want to know the best face identification processing software and hardware in the known universe? It's the human brain. You have a whole brain area dedicated to face identification. We're so good at it. No computer comes close to your ability to holistically process a face. A lot of people be like, I'm bad with faces. And what you really mean is you met somebody once before and then you meet them again a few weeks later and you're like, oh, God, I didn't realize I met that person before. If I put two photos next to each other and I'm like, are these the same person? You can tell me yes or no, right? Like, you're good at that. And similarly think of it like if I showed you a picture of Lydia like how blurry would it have to be before you're not sure it's her I could show you a picture of the back of her head and you're like I know her think of old family photo albums like pictures used to be crap and I'm like that's my mom if you know a face well enough you're good right so like the real answer when you have these blurry photos is you just have to get it in front of a person who knows the guy and they're like I I

0:19:25 Jenessa: Know that guy. I know it's really blurry, but like, I swear to God, I know that guy." Why would you ever use a computer? It's really just because what I can't do is search through 1 million faces in 30 seconds. That, it takes me forever. A computer will never beat me at recognizing a face I already know. I'm a professional at recognizing faces I already know. I have a whole brain area for it. That part is important. The computer is not better at recognizing faces than a person.

0:19:35 Thomas: Mass surveillance

0:20:01 Jenessa: It's better at running through a million faces because that takes time. Walters works at the sheriff's office. He gets this attempt to identify Bulletin. It has a picture of a blurry picture and he just throws it into this software. There's been no checks about it you know obviously in retrospect they're going to argue here it comes nowhere close to any of the requirements for good enough to make a match december 15th o 'connell who is our primary investigator gets an email from walters responding to that bulletin and walters says to him hey you gave me these photos I put them in a facial recognition program quote the photos revealed a 93 % match on facial features to Robert Dwayne Dillon. We have a bit of a problem here. This is completely misleading as to how this works. To call it a X percent match,

0:19:59 Thomas: Yeah right right yeah

0:21:01 Jenessa: The percent it pops out is the confidence rating of this software, which is itself disputed all on its own.

0:21:07 Thomas: I don't know if this will come into play but But it would also depend on like if you were taking that vague percentage, it would depend on how many faces are you comparing and how different is that like our human faces on average? You know, like if if it's like the old chimp DNA thing they say or whatever, like we all start from like a certain percentage. It really depends on how you've configured your computer.

0:21:33 Jenessa: So we've got like three major problems. Number one, we don't really know what it's analyzing to even what is it matching not 100 clear number two what does the percent match mean like what did you match and how did you calculate that but number three the number it pops out is not in fact a percent match it's how confident it is in its match and that is also the subject of debate and questioning and really needs some validation it's proprietary software you know

0:22:09 Thomas: Yeah. Yeah. And even if it were, let's say, 93 percent, I feel like there are people who look 93 percent like each other like that, like pretty easily. Yeah.

0:22:16 Jenessa: Oh yes yeah so that's another problem this is the biggest thing they're going to harp on is what's called the doppelganger problem there are people who look alike necessarily you know if you had an automatic license plate reader that got your license plate one digit off. The car that is one digit off is, like, statistically no more likely to be related to your car.

0:22:42 Jenessa: Like, that's just random, right? So they accidentally, I mean, there is plenty of footage of this happening. They pull somebody over, they pull the gun, get out of the car, oh my god, you're a murderer. And then it's like, oh my god. Just kidding. We thought that was a Y. It's a P. The license plate reader got it wrong. My eyeballs never would have. Oops. But at the end of the day, it would just just be a random person. This is not random. It is going to pull your doppelganger most of the time.

0:23:10 Jenessa: You walk around and you're like, here I am in this video game and there's only so many skins on the NPCs, right? Like they all kind of look the same. Everybody has like, there's only so much faces out there in the world. That's not really true, but it kind of feels like that. You meet people and you are like, dang, you really look like someone else I know.

0:23:27 Jenessa: And it it just keeps happening. If we use this software to pull somebody who is not random, really does kind of look like the guy in the footage, it's almost become circular. Of course, he does kind of look the guy on the footage and got him or not, right? If the guy and the footage is not in your database, there's a 100 % chance that you have a false positive. You can't pull them up. In this case, the database they're searching is Florida DMV and Florida mugshots. I'm not in that database.

0:24:03 Jenessa: It would literally never pull me up if I'm the suspect. It will only pull false positives. We have a problem there, right? That doppelganger problem is going to compound over and over again as we go through. Walters sends this, a 93 % match on facial features. No, it's the computer says that the computer is 93 % certain. And that's not exactly the same thing. Doesn't include any caveats about, hey, this is just an investigative lead. We'll get into the department head procedures about what you should do and say about this. Doesn'T say that. Doesn' t say it's not a positive ID. Doesn''t say this is not probable cause, like do more investigating, which was the Jacksonville Sheriff's Office own policies. Does not repeat any of that.

0:24:52 Jenessa: Just says, here's what the computer said to me. Doesn ''t disclose how how many candidates were returned. He just says this guy is supposedly a 93 % match. Doesn't say how many other people. Did somebody else come up an 82 % match?

0:24:51 Thomas: That

0:25:06 Jenessa: Nothing. No other information. The probe images are those like blurry photos of a blurry photo. He doesn't disclose that, but should be assumed at that point. What other photos does he have? Doesn't get any peer review or any ask ask anybody else to look at this, just sends it off. What does O 'Connell do with this? He calls Mr. Dillon on the afternoon of December 15th. You know, I'm not going to drive 300 miles.

0:25:06 Thomas: Would be crazy.

0:25:37 Jenessa: I'll just call him. Hypothetically, if you think this is the guy, he might have tried to abduct a child and you're going to call. And then what?

0:25:45 Thomas: You'd be like, hey, child molester says what? I gotcha.

0:25:51 Jenessa: If you were right, he's going to start hiding evidence or run away. Like what? What is the thought process here?

0:25:57 Thomas: Yeah?

0:25:58 Jenessa: He called and he says he's investigating an attempted child abduction. Mr. Dillon was surprised and immediately questioned what the matter had to do with him. He recalls O 'Connell stating, quote, I'm looking at your mugshot right now. No, he isn't. Mr Dillon has never had a mugshot. And I'm looking at surveillance video footage and I'm convinced it was you.

0:26:18 Jenessa: Mr Dillon denied any involvement and stated the person in the video could not be him. He lives in Fort Myers. He'd never been to Jacksonville Beach in his life aside from passing the exit on the highway.

0:26:29 Thomas: Oh you think that should clear it up

0:26:32 Jenessa: Yeah. O 'Connell says he did not believe Mr. Dillon. Mr. Dillon says, quote, you've got the wrong guy. I have very distinctive scars. I had skin cancer. I have a scar running from my hairline down to my nose. Literally, you couldn't pick a better case. How could you ever mistake the guy? He has the most distinctive face you could ever imagine. O'Connell responded again, quote, "I'm convinced it's you."

0:26:44 Thomas: Then oh my

0:27:00 Jenessa: No No other investigation has been done, just the facial match. Mr. Dillon again denied involvement. O 'Connell asked if Fort Myers police could come to his home, and Mr. Dylan stated, quote, of course I will, end quote, cooperate. So he must have said something to the effect of, I would cooperate. Following the call, Mr. Dillon contacted his local law enforcement agency, the Fort Myers Police Department. An employee told him the call sounded like a hoax. No law enforcement would telephone a suspect wanted for child abduction. They would simply arrest him

0:26:59 Thomas: God okay hmm yeah geez

0:27:32 Jenessa: Dylan called the Jacksonville Beach PD the individual who answered stated no one on duty was aware of any attempted child abduction investigation matching that description and the call sounded like a scam so yeah he doesn't bother getting himself an attorney or anything he thinks it was a

0:27:51 Thomas: Wow the police really are the best and brightest you know

0:27:54 Jenessa: Scam keeping in mind the entire time they should be thinking thinking a suspected child abductor is on the loose. They should be trying to catch. I can't imagine a worse crime. Like, I don't know, abducting two 12 -year -olds? Like, what would be worse? Nothing. You have to imagine they're looking for the worst person in the universe. And this is what they've done so far.

0:28:12 Thomas: Yeah

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0:28:24 Jenessa: They then decide, entirely based on that facial recognition result, just that that one cop is just doing his job with nobody checking on him. He requests a photo array from the general investigations unit using Mr. Dillon as the person of interest. Now, this is critical. This is where that doppelganger problem is going to multiply. Instead of making a lineup where the fillers, like the extra people who are not suspects, instead of making the fillers look like the description of the suspect. They make the fillers look like Mr. Dillon. They're all averaged around this guy who is the average person who came out of this averaging machine.

0:28:28 Thomas: Who's they is it just that one idiot or okay

0:29:10 Jenessa: And then they're going to call the victim's father. It goes to voicemail. They never show this photo array to the victim who actually looked the guy in the eye when it happened. They will instead go show it to Ms. Wilson, the manager who says she knows the guy is a regular but hasn't seen him at this point in two months and didn't see the incident. They say they did it sequential, which is what you're supposed to do. You show photo one. Now, not comparing to all these other people. Compare to your memory. Is this the guy? No? Okay. Photo number two. Is that the guy that you're supposed to do? No. Okay. You don't tell them how many photos. What you should do is tell them the person and might not even be in here. Don't worry, we'll do the investigation no matter what you say. This is like good protocol is what you should do.

0:29:55 Thomas: Be fair, I mean that advanced police technology was invented in like like 1812. So I don't know if it's gotten to Florida.

0:30:01 Jenessa: Yeah. There are a lot of recommendations from like the Innocence Project about how to do this and how not to do it. And one of the things they'll do that is really how not to do it is after this sequential presentation, they then put all six photos in front of her. So now what you're doing is you're not comparing each one against your memory. You're comparing them all against each other. Which one kind of looks the most like the the image you've seen on surveillance footage a bunch of times now, and the image that you kind of have in your brain, but also like which one is closest, not which one IS it. Is this the person? And sure enough, she says, yeah, that's the guy, Robert Dillon. Because yeah, the computer picked a guy who looks kind of like the guy. One thing they really emphasize is this creates a false perception that the result has been confirmed, but it's not really. Like, confirming Confirming it would be if I found, oh, we think he was driving this car and I find it in the driveway and I take that guy's photo and then you tell me that's the guy for sure.

0:31:07 Jenessa: Like I do proper lineup procedure. Then it would Be like for independent reasons not related to his face. I picked that guy and then You say that's The face if I pick him because of his face and then and you tell me, yeah, that kind of looks like the face. It's like, it's just magnifying the problem. It's repeating what already, yeah. You're telling me what I already know, which is he's either the guy or a doppelganger for the guy. One of the two. Not the most helpful thing in the world. They say, got him. Great. She identified him as the guy, and then they wait six months. They never presented to the victim they don't do anything else I don't know it's january 31st he applies for a warrant the best I can think is it sat on his desk six months and then it was the end of the I don' know pay period and somebody was like you got too many open cases I don''t know I really don'' 't know one thing they did do that didn''' work out so well for them he ran license license plate data for Mr. Dillon for November 1st, 2nd, and 3rd, the day before, day of, and day after, and two vehicles registered to him. Neither one came anywhere near that area,

0:31:47 Thomas: Why would they wait six? Okay, so that should clear it up.

0:32:27 Jenessa: You would think. And then they just, they never investigate any of the other security footage. They don't talk to the victim. They don'T do any of this other stuff.

0:32:37 Thomas: It's amazing how bad the police are. Like, it would be hard to try to be this bad. You know, it's like if it was like, oh, and then there's a little slip up, somebody put the piece of paper in the wrong place. And then they, you know, as a a switcheroo whoops you know there's like one thing that was like okay I could see how an accident could it's like at every turn they're doing the worst possible job you could do

0:33:00 Jenessa: Truly. It's one thing when they do that, like, not that I love this, but they dothat every time. You're like, like, hey, somebody broke into my car and they're like, what do you want me to do about it?

0:33:09 Thomas: Yeah I don't know police stuff yeah

0:33:09 Jenessa: And I'm like, your job is what I would like you to do. Is it something police stuff about it. I literally had somebody put a key between their knuckles, punch my window in and left the key in my car. And I was like, ma'am, critical, critical piece of that. This key fits a door. If you find the guy like I got better than a fingerprint for you, I know who did it. And the a woman said to me, you can just throw that out.

0:33:13 Thomas: Look for clues wow yeah

0:33:37 Jenessa: And I was like, can you just pretend to put it in a little bag? You throw it out for me. Like, just pretend. At least. Yeah. Make me feel better that you're trying. She was like do you want to report for your insurance? And I'm like on my 12 year old car? No. I'm going to duct tape a bag over this and get a new car eventually. Like absolutely Absolutely not.

0:33:35 Thomas: Yeah yeah you never know yeah could be something yeah yeah should be like we're gonna hold on to this crucial evidence yeah

0:34:00 Jenessa: When they do that about my car break -in, I'm like, to be fair, there are bigger problems. This is someone trying to abduct a child. This man is still on the loose. We still have no idea. Because what they will finally do six months later is go arrest Robert Dillon. That's it. That is what will happen. He talks extensively about just how awful obviously the arrest is awful you don't need me to tell you that they leave him in a cell in like a t -shirt and shorts in a freezing cold room with no mattress they put him in the back of a van to drive him 300 miles he's not seat belted in like they treat him like crap. Unfortunately, this is not shocking to hear, and we should treat everybody better, even if they are guilty of a crime. Throughout the arrest, transport, and booking process, Mr. Dillon was tormented by the process of explaining to his wife and his young daughter, who was around the same age as the child Mr. Dillon, was falsely accused of

0:34:17 Thomas: Got him mission accomplished wow oh my gosh

0:34:58 Jenessa: Attempting to lure, that he had been arrested for luring or enticing a child. I mean, yeah, he believed he might never see his wife or daughter again. Again, he did not trust the criminal justice system would give him a fair opportunity to prove his innocence. He believed his life as he had known it was over. Notwithstanding his complete innocence, he feared the consequences of a conviction, including incarceration and the permanent destruction of his reputation and livelihood.

0:35:25 Jenessa: But then he post -bond of $1 ,500. If you think he tried to abduct a child, why is there bond at all? Like, I don't even understand how any of this works. Yeah, that's nothing. Thing. If you think you're about to be convicted of trying to abduct a child, wouldn't you pay $1 ,500 to run away forever? Like, I don't even, I Don't understand how any of this makes any sense. Okay. Pleads not guilty. 69 days after his wrongful arrest, the state attorney's office drops the charges.

0:35:34 Thomas: That low

0:35:57 Jenessa: Nobody ever apologizes or acknowledges the error. Yeah. The only evidence is this, this match. And there's tons of exculpatory evidence. He can't possibly be irregular. The license plate data shows he wasn't there. There's no logic to any of this. Nobody's going to ID him once they see the scar on his face. Like, none of this works. Once you see that, the

0:35:56 Thomas: Geez yeah oh yeah I forgot about that whole thing oh boy

0:36:23 Jenessa: Jacksonville Beach PD stated, we will not be commenting on this matter beyond stating that all warrant requests are submitted to the state attorney's office.

0:36:32 Thomas: Oh it's their freaking fault

0:36:32 Jenessa: It is solely, solely yeah yeah yeah it's solely their decision whether or not to move forward with issuing a warrant

0:36:39 Thomas: Well I I think you got an apology to the to the fine boys in blue who I all they they did was follow orders from the attorneys general or whatever you just said. They had nothing to do with it.

0:36:48 Jenessa: Jacksonville sheriff waters not walters walters is the one who did the facial recognition sheriff waters who should have been in charge of this said quote if you came to me with a facial recognition hit and that was your probable cause I would probably kick you out of my office because that's not how it works yeah like of course it returns false positives even a good picture could return a really high confidence of a false positive of a doppelganger we have to do outside confirmatory evidence he files this lawsuit and primarily what they're seeking of course they want one of the biggest things is even though you have said we've dismissed there's no charges, it is still on the record somewhere that there was probable cause to arrest him and so one of the big asks is to get rid of that order please huge problem here they've taken his mugshot off the government websites that'll be on third-party websites forever that is going to come up saying he was arrested for luring a child like that's the rest of his life because these third -party websites that are not the government that just scan government websites and grab

0:38:05 Thomas: It says what, even if he was dismissed, it'll say what he was arrested for. Oh, wow. Yeah.

0:38:15 Jenessa: That information like I mean you could go start issuing takedown notices to them but it's the internet the internet's forever like it's going to take forever to get this removed people still approach him all the time asking him about it he says like he doesn't want to interact with kids in public ever anymore doesn't even want to say hi or smile at a baby because like god forbid somebody thinks something terrible is happening life-altering so of course money damages for all of that there's also going to be failure to train and failure to supervise because a quick little blurb on Officer O'Connell here used to work at the St. John's County Sheriff's Office. There was an issue where his sister died under suspicious circumstances.

0:38:34 Thomas: No. Yeah, I bet. Oh wow.

0:39:03 Jenessa: It might have been a suicide. It might have done a homicide. It's not clear. The sheriff of that county acknowledged his office made missteps in handling the investigation. They get a special prosecutor. Special prosecutor said said this death is going to remain classified as a suicide at which point O 'Connell calls and threatens to blow up the sheriff's office so he's terminated the next year he's reinstated at the sheriff's office so I don't know I guess they thought a year was enough time to calm down then a few years later he's arrested for domestic battery according to the arrest report his wife said he punched her in the face during an argument and had been mentally abusive for six years at that point. He's charged with battery and he resigns, quote, due to recent events, I have come to terms with the fact that my service will not be as effective as required by the position of deputy sheriff.

0:40:00 Thomas: I'm sorry. Remind me which, which asshole this is.

0:40:03 Jenessa: This is our primary investigator.

0:40:05 Thomas: Primary asshole. Okay.

0:40:05 Jenessa: Yeah, our guy who is totally in charge of what what he's doing here. Notwithstanding this prior history, Jacksonville Beach PD hires him as an officer. After all of that, knowing everything about him, no extra supervision, not like carefully watching what he is up to, nothing about that, even on this super sensitive investigation of some like very emotional stuff, nobody's watching him. On December 3rd, 2024, just one month after After the charges against Mr. Dillon were dropped, and while his arrest record had not yet been expunged, Jacksonville Beach PD promoted O 'Connell to the rank of corporal.

0:40:45 Thomas: Hmm. Good job on the nothing you've been doing lately.

0:40:48 Jenessa: Yeah, the literal nothing. The, like, just letting people get away with it.

0:40:53 Thomas: Doppelgangers are down 50%.

0:40:57 Jenessa: One of the things that's really important here, my first thought always is, how are we going to get around qualified immunity? If you are focusing on the really, really specific parts, do they know or should have known it's unconstitutional to use AI facial recognition software and then rely only on that? Well, of course not. There's no, this is first, right? There's no way. They take it much broader and the ACLU does a really good job of showing you how this is broader than that and they did know or should have known. So there's a couple of things. This is not the first time this has happened. You are on actual or constructive notice because of so many widely publicized examples of this in the news. They give quite a few examples of incorrect facial identification using this software leading to a false arrest people getting sued over it and it happened within the jacksonville sheriff's office two other times already they falsely arrested somebody based on that that they passed along a low match and said oh yeah this is totally the guy and it turns out not to be the guy and really negative consequences for people you knew or should have known and they also say you have this in your policies. The Jacksonville Sheriff's Office has this whole thing about why you need high quality images. It's just a way to get started. You should never consider it conclusive, even when you match it with a photo lineup, like that's not good enough because this is a circular problem, blah, blah. That's the Sheriff's Department. But the Jacksonville Beach PD doesn't do any training about this for their officers, and they don't have any specific policies they just like vaguely repeat two lines from those like multiple pages that come from the sheriff's office so they don't train on it they just say a little bit about it but critically they had access they knew from the sheriff's officer what the policies are they had the access to it they had to the ability to train on and chose not to so you knew or should have known own. That's how we're going to get around all of this, to say it was a natural, knowable consequence. And similarly, you go to employ this technology, if you know how it works, the doppelganger problem is just an obvious consequence. And so you should put in protections against it. If you don't know how the technology works, you shouldn't be using it.

0:43:40 Thomas: Got him. Yeah.

0:43:40 Jenessa: There's no way out either direction. You can't get away from this. That's essentially what they're going to do to slowly build a wall around this from every direction you knew or should have known what was going to happen. There's also a really interesting part here. When you think about malicious prosecution, I saw that listed for Walters, the sheriff who did the facial recognition, and for O 'Connell, our primary investigator. And I was like, but what's the motive? Why would they do that? And I had to remind myself, motive is not part of it.

0:44:12 Jenessa: What matters is, knowingly or with reckless disregard for the truth, they pursued this. They pursued a warrant against this guy based only on that one piece of evidence and left out of the application for the warrant all of the exculpatory evidence. They don't mention anything about, he's supposedly a regular, but he lives 300 miles away. They don't mention license plate data does not show him and we know we it's not like we didn't check we checked and we know his two vehicles were nowhere near there so the only way he's down there is like took a bus or stole a car like they leave all this off and lead the judge to think they don't have exculpatory evidence when they do that is how you get to malicious prosecution it was knowingly or with reckless disregard for the fact that he didn't, couldn't have, is very unlikely to have committed this crime, pursued the warrant and withheld evidence that would have led any reasonable judge to not issue this warrant. They withheld that. Always keep in mind, motive not necessary for that.

0:45:25 Jenessa: That, my brain jumped to it, and it's not necessarily true. Justice for this guy, good lord, just gets arrested out of nowhere. Six months later, what he thought was a prank call, wall basically but also this could set a precedent that like hey here's a problem if you just keep a database full of faces and search them all the time you're gonna get hits his face in the middle of all of this going on his face showed up as a potential hit for a different crime he's just got one of those faces he's got one of those crime faces

0:45:56 Thomas: He's just got one of those faces. They always say that was always, it was always like the fake excuse for like the, you know, the fugitive or something like that. So I just have one of those faces turns out I guess there are people who just have one of those faces yeah

0:46:09 Jenessa: Yeah and you know what I want to leave us off with to think about when we talk about legislation in the next episode. This is a problem that any of these machines are going to come with biases. Garbage in, garbage out. You put in biased data, you get biased results out the back end. We don't really know why this machine likes his face so much, but it really likes him for crimes. I think you can begin to imagine what kinds of people, it's going to keep pulling out, especially if you train these programs on mugshot data and then your database that you search is full of mugshot data. Yeah, it is going to tell you the guy looks like the guy I already know about. Of course. It will be more confident because it is a face it has seen before in its training data. It is just riddled with problems and if there is no regulation here, but we're in big trouble. If it were not for this software, a man who lives 300 miles away would never have been a suspect. I think it's a really huge problem that we don't know what these computers were trained on, but if they were trained in the right way, on mugshot data, it's just like once you were, forget convicted, if you were ever booked once, you're just doomed to get pulled as like a higher percent match forever in these things. It will be more confident that you're a match because it's been trained on your face, because it knows what you look like. It will be easier to identify you.

0:47:46 Ad: [Ad break 3 — ad music]

0:47:46 Jenessa: All of these problems that we talk about with AI, it's not like unique or new or something that's never happened before. It's just magnifying old problems. It has always been an issue that the police department gets new technology and treats it like it's magic, treats it like it's definitive yes.

0:48:01 Thomas: Yeah the laziness is what really

0:48:05 Jenessa: What would they have had to do to get the actual surveillance data for McDonald's to get the payment data to get who bought from here. They needed warrants. This software was warrantless. The license plate data was warrantless. We already had the data and we just searched our own database. He didn't have to do work to do this. The magic machine told me there's a match. If it tells me, allegedly, there's a 93 % match, which is a mischaracterization, investigation why would I go check if I think the machine is god and it is all knowing and it's perfect it's so sure but if you then go try to corroborate it with actual outside evidence like has he ever once shopped here did he use his credit card at this place you could have caught the guy you literally could have looked at who placed an online order within half an hour of picking that order up and had a narrow list of suspects. How many people online order at that McDonald's?

0:49:10 Thomas: Yeah and then if you cross -reference that then it's even more insanely like accurate meanwhile the whole time hiding in plain sight the hamburglar obviously he's the guy or grimace actually he looks like a rapist I think there's a reason they don't really go with those. They don't emphasize those mascots much anymore. Yeah.

0:49:31 Jenessa: They have gotten rid of the thief, haven't they? He's gone. I have been exposed to the cops not trying very hard on mild property crime, but I was shocked at the level of not trying at all on an attempted child abduction. I don't see any reason to believe anybody's lying here. Very clearly, someone tried to abduct a child, and we still don't know who did it.

0:49:55 Thomas: Still didn't even decide to put more effort into it later.

0:49:59 Jenessa: As far as I can tell, maybe there's a secret second investigation going on. As far as I can tell, it's like open and uninvestigated, and he just got promoted for the nothing that he's doing on this case.

0:50:11 Thomas: And that stayed? There wasn't anything like discipline after this or anything?

0:50:15 Jenessa: Nothing. Thing. In all the time that this was going on, that all these other false arrests were going on. They have made no changes to their written policies or training on any of this. Nothing has been done.

0:50:29 Thomas: So wait, what did happen? Did he get a payout or something? Sorry, did I miss that?

0:50:33 Jenessa: He's suing right now. This is the complaint and the lawsuit.

0:50:36 Thomas: Oh, I'm sorry. The way you were talking, it sounded like they won or something. So this is just recently filed. So there's every chance that this doesn't even work. And like, there's a qualified immunity bullshit.

0:50:41 Jenessa: This was filed very recently. Yeah. We're waiting to see what's going to happen here. I'm sure they will attempt. Why would you not really attempt a qualified immunity defense? I think the ACLU has done done a really good job of building a solid case from every angle they knew or should have known that these outcomes were possible, likely even, that these outcome had happened before, even within their own jurisdiction. If you knew or would have known about these outcomes, these outcomes you know are unconstitutional, you know are illegal, you are causing damages. So that's how we get around, how was I supposed to know how AI works? You don't need to be that specific.

0:51:33 Thomas: Here's where we need to play the famous clip from my cousin, Vinny. That is a cogent, sensible, whatever point essentially overruled. We'll see.

0:51:43 Jenessa: We shall see. I think it's a good sign that the ACLU is really trying to push hard on these cases. Obviously, it's like the best test case you can come up with.

0:51:53 Thomas: Cause it's a white guy. I agree yeah yeah

0:51:55 Jenessa: Unfortunately, yes, I think that does make it a more sympathetic case to a lot of people. Sadly, I think the facts are really strong. Wrong. It's just clear as day. Nobody's going to wonder if maybe he really did it. It just blatantly obvious he did not do this. And what's critical is if the police had done any due diligence, just forget any of the other investigations. Stop and use your brain for two seconds. He can't be a regular. He lives 300 miles away. Done.

0:52:25 Jenessa: The fact that the computer turned back a match, but you should go, I need a match who lives within at least like he's got to live within 30 miles

0:52:33 Thomas: Even if you did all the that stuff which was this you know lazy shitty way to do it and got to that point we're like oh well it can't be this guy like that would still suck but it wouldn't have sucked this bad

0:52:43 Jenessa: Exactly how far away would he have to be what if it turned up a perfect match in Canada like what would you do then you know use your brain

0:52:51 Thomas: My child abductor lives in Canada you don't know him

0:52:54 Jenessa: And critically like yes you could say like oh well you know most people wouldn't do that but it only takes two it took O 'Connell doing nothing and just putting out this like try to help me find this guy and it took walters being like I'll throw this into the database and see what happens it took two people and that's it it's not you need two people in your locality to ruin your life he was 300 miles away it takes two dummies in your state and if we

0:53:25 Thomas: Oh yeah just anywhere in the state geez

0:53:29 Jenessa: Start nationalizing this stuff which they are doing two dumbies in the whole country could ruin your whole life with this I know it sounds like an extreme case, but it is a microcosm. We have other examples of it happening, and it only takes once. One person who doesn't do their due diligence will find you a match. There are other people who look a lot like you. Your face is not as unique as you think. We shall see.

0:53:55 Thomas: Yeah if Ashton Kutcher, no who do I look like Tom I've gotten Tom Brady at times. Oh, Braden Holtby. Is that his name? Braden Holby. Yeah, Bradon Holtbe, the old. If Braden Holdby, the Old Capitals goalie, ever commits any crimes, I'm screwed. I'm totally boned.

0:54:06 Jenessa: Dude, I had a doppelganger in college where literally I was walking around and people would just come up to me and be like, hi, Evie. And I was like, what? What? And a couple of times people are like, Evie, why are you wearing glasses? And I was like, not Evie. Also blind without these. It hit the point where I was, like, do I, in my sleep, take off my glasses and become Evie the party girl? Like, what is the number of people who would be like, I would be, like. I'm not Evie and instead of being, like oh, I'm so sorry. You just look so much like her. People would be ,like. Why are you messing with me?

0:54:44 Thomas: Wow.

0:54:45 Jenessa: And then one day I was walking in cross campus and the best way I can describe it is I saw me walking towards me she looks so much like me it confused my brain like it messed with

0:54:51 Thomas: Holy shit. You thought it was a mirror?

0:54:58 Jenessa: Me we both just stopped and stared at each other and I was like are you Evie and she said are you Jenessa it was like it was so wild I literally asked my mom I was like I didn't have a twin right you didn't like have twins and like like, be like, this is too much and get rid of me. Like, yeah, it, I don't know, man. It was wild. So like, I just really gotta hope she never commits a crime because I'm screwed if that happens. I look exactly like her.

0:55:07 Thomas: No way. That's crazy. Wow. Abandoned one of them? Yeah. No, but Evie's mom did.

0:55:29 Thomas: Man, I have one that's a little bit of a bummer, unfortunately, that I'm just remembering. So bummer alert, apologies. But back when I was in like high school and my sister was in college, there was somebody who apparently went to college with my sister at the time who everyone was like, oh, you look exactly like this guy. You look exactly. Like this guy and I met him briefly. I didn't I didn'T really see it or I couldn'T really tell is a lot of 20 something years ago. And then like unfortunately that guy died like shortly after like uh maybe a few years later and then it was horrible because like then people would see me and think I was that guy for a sec it was awful fortunately I didn't it was you know my sister's college kind of far away so I didn'T really if I could only imagine if it was like local or something that was like really nearby that would it was a bummer like once but I didnT really see anybody after that yeah that's that's that's depressing. Anyway, sorry.

0:56:14 Jenessa: Not too often. Oh God. Oh yikes. There can only be one

0:56:27 Thomas: So it turns out, yeah, I know. It's like, I'm remembering too, in Spanish class in high school, there was a Borges story, Jose Luis Borges or whatever. You know that author?

0:56:35 Jenessa: I know who you're it's familiar sounding

0:56:38 Thomas: Yeah. Jorge Luis Borges, who writes like short stories. And I remember we read one that was like about this. It was like, what's the Spanish word for doppelganger? It's like si mismo or something or si.

0:56:48 Jenessa: Oh mismo does mean same

0:56:51 Thomas: I remember it being a cool, like creepy story. It wasn't almost like a little bit Twilight Zone -esque is my memory of it. Again, I read it in Spanish in high school, so I don't know. But it was like, everyone has a doppelganger and it's like, you all meet them at some point, but it's so crazy that you forget because it's such a jarring incident that, you know, that was kind of cool. All right. Well, that was really interesting. I want to, you Know, can you set an alarm on that one if anything happens? Because if that one doesn't go well vis -a -vis qualified immunity, then, you now, like what can? We'll set an alarm on that one.

0:57:23 Jenessa: If yeah and that would be the classic problem of like somebody needs to say that's unconstitutional so that at least going forward you can't do it a second time if that gets stopped in the traditional like the current way we conceive of qualified immunity we're screwed exactly like you you need to at least the second time around not be allowed to do this and we might be in that trap of we'll never say it so it'll never count yeah I I really really hope we can at least get past the qualified immunity step because at that point what we need is precedent that says this is unacceptable you cannot treat any technology like it supersedes human judgment and human reasoning and just trust a machine to prosecute people

0:57:56 Thomas: So stupid. That and just the qualified immunity. I mean, if we took back Congress, well, okay, Trump wouldn't sign it, but we could fix that legislatively, right? Okay. We got to do that. I know we talked about that before, but all right. Well, Jenessa, thanks so much for the breakdown. Really interesting stuff. And I'll keep an eye out for your doppelganger, Evie.

0:58:27 Jenessa: Yeah absolutely yes yeah oh god I'm gonna duct tape a bag over this and get a new car eventually

0:59:21 Thomas: Meanwhile, the whole time hiding in plain sight, the Hamburglar. Obviously, he's the guy. Or Grimace, actually. He looks like a rapist.