Cities and states are leading the crackdown on using facial recognition as lawmakers in Congress struggle to find a path to address concerns over the emerging technology.
Privacy and civil rights advocates have castigated facial recognition as overly invasive and potentially discriminatory. But with Washington appearing slow to act, critics are now targeting their efforts at the state and local level, where they believe legislation to restrict the technology can move faster and tougher action is likelier.
Their campaign has been bolstered by a series of wins in recent weeks. San Francisco last month became the first city to ban local government agencies from using facial recognition technology, followed last week by Somerville, Mass.
Meanwhile, several states are weighing proposals that would limit or temporarily halt the government’s use of the sensitive tech.
“The value of cities, and states as well, is that they are the laboratories of democracy,” Jacob Snow, an attorney with the American Civil Liberties Union (ACLU), told The Hill in a phone interview. “It’s been heartening to see that right now they are leading the charge to limit face surveillance.”
On Capitol Hill, lawmakers have pledged they will offer bipartisan legislation on facial recognition technology sometime this year, but so far the most substantive action has been limited to a series of House Oversight Committee hearings.
“Congress is still in the early stages of educating itself about facial recognition,” Sen. Ron WydenRonald (Ron) Lee WydenLawmakers grow impatient for FDA cannabis rules Buttigieg slams July 4 military parade: I think it makes America ‘look smaller’ Overnight Energy: Democrats decry use of park fees for Trump July 4 event as ‘slush fund’ | Rick Snyder withdraws from Harvard fellowship | Moody’s Analytics predicts climate change could cost T by 2100 MORE (D-Ore.), who has been raising concerns over the technology for years, said in a statement to The Hill. “And I fear by the time it does, the train will have left the station.”
Activists are hoping to ultimately direct the local grassroots passion toward Congress as they push for a temporary ban or at least more regulation.
Facial recognition technology, which scans people’s faces for the purpose of identifying them, has swept across the country in recent years without any government regulation or oversight. There is no federal law that provides safeguards on face scanning, a form of biometric surveillance.
While it’s difficult to determine how many law enforcement agencies currently use facial recognition technology, a 2016 study by the Georgetown Center on Privacy and Technology found that at least one on in four police agencies can run facial recognition searches. And according to market research firm Grand View Research, the government “facial biometrics” market is expected to spike from $136.9 million in 2018 to $375 million by 2025.
Skeptics of the government’s use of the technology – a coalition that includes civil liberties and civil rights activists and some leading tech companies – warn that it can provide authorities with unprecedented access to the daily lives of every person in the U.S., opening the door to a litany of privacy violations that could erode freedoms and raise the specter of constant surveillance.
And multiple studies have shown that some facial recognition technology is more likely to misidentify women and people of color, an issue that emerges when the software is trained on datasets of largely white men.
As airlines set up face scanners and police officers deploy the technology to find criminals, critics uniformly are calling for a halt.
“If we don’t act quickly and harness the growing backlash to this technology … and get real restrictions in place at both the local, state and federal level, then I think this technology will spread very quickly,” Evan Greer, deputy director of digital rights group Fight for the Future, said. “And that will normalize a type of surveillance that is incredibly invasive.”
Activists have launched a number of grassroots campaigns over the past year in states including Washington, California, and Massachusetts to push for local and state crackdowns, tallying up wins despite pushback from law enforcement and some tech trade groups.
Massachusetts is considering a bill that would bar state government agencies from obtaining or using facial recognition technology until the legislature passes regulations.
And in California, legislation that would bar the installation of facial recognition software in police body cameras is making its way through the Senate.
“By adding facial recognition software to police body cams, you are deploying thousands of cameras in California immediately and surveilling ordinary citizens 24 hours a day,” California Assemblyman Phil Ting told The Hill, explaining the impetus behind the bill. “I don’t know that ordinary citizens like [that surveillance].”
There are no states actively considering all-out bans, largely due to a delicate strategy employed by the coalition of privacy activists across the country, driven by the ACLU. They have targeted cities for bans while calling for a temporary pause, also known as a moratorium, at the state and federal level.
“States and the federal government can do things that cities can’t do in terms of setting up regulatory frameworks,” Ben Ewen-Campen, the city council member who introduced Somerville’s facial recognition ban, told The Hill. “The state has control of our criminal justice system in a way that cities never can.”
San Francisco and Somerville are offering a model for other cities, including Oakland and Berkley, which are considering their own bans.
Ewen-Campen, who cited national polls indicating most voters are skeptical of facial scanning, said he believes cities are acting in the vacuum left by Congress.
“Cities have no choice,” Ewen-Campen said. “Given the fact that right now, there are no regulations at the state or federal level and the technology is light years ahead of any kind of regulation, I don’t see another option.”
At the federal level, the concerns over facial recognition technology have been bipartisan in an otherwise bitterly divided Congress.
Reps. Jim JordanJames (Jim) Daniel JordanTrump administration drops citizenship question from 2020 census Trump digs in on citizenship question after Supreme Court setback House panel votes to subpoena Kellyanne Conway over Hatch Act testimony MORE (D-Ohio), a Trump ally, and Alexandria Ocasio-CortezAlexandria Ocasio-CortezInternal memo shows officials were aware of Border Patrol agent Facebook group as early as February 2018: report Study touts planting 1 trillion trees as most effective climate change solution Sanders hits back at Biden’s skepticism of progressive appeal MORE (D-N.Y.), a progressive star, found themselves on the same side of the issue at a recent House Oversight and Reform Committee hearing, as they raised questions over the technology’s potential threat to First and Fourth Amendment rights.
Rep. Mark Meadows (R-N.C.), another member of the committee, called the issue a “sweet spot that brings progressives and conservatives together.”
“When you have a diverse group on this committee, as diverse as you might see on the polar ends, I’m here to tell you, we’re serious about this and let’s get together and work on legislation and … the time is now, before it gets out of control,” Meadows said.
Oversight Chairman Elijah CummingsElijah Eugene CummingsFacebook finds itself dragged into border controversy The Hill’s Morning Report – Sanders falters as rivals rise Top Muslim advocacy organization calls for congressional hearing over Border Patrol agents’ Facebook posts MORE (D-Md.) said there will be one more hearing on the issue before he directs committee lawmakers to work up legislative proposals.
“I am working on solutions to address the lack of transparency in this system and the lack of safeguards when it comes to facial recognition use,” Cummings said in a statement to The Hill.
But substantive action is likely long off, with only three more weeks before Congress leaves for the August recess and no legislative proposals on the table.
As the legislative battles heat up, leading players in the facial recognition industry – likely anticipating tougher rules – are offering their own “best practices” and frameworks for legislation. Microsoft and Amazon, which both offer face scanning products, have laid out guidelines for national legislation which puts more restrictions on how law enforcement can use the software.
Some companies, including Microsoft, have sought to get ahead of the issue by outright declining to sell the product to the government. Leading facial recognition company Kairos, which is based in Florida, has publicly said it will not sell to law enforcement agencies until there is some regulation.
Melissa Doval, the CEO of Kairos, said her company is holding off because “the government needs to catch up and we’re working on the tech to make it better.”
“It would be fantastic if the government were to move on it and were to actually make legislation and really understand the technology and the possibilities of its use,” Doval said. “That’s still in its infancy stages.” She noted that her company is working with the ACLU in one state on legislation but declined to offer specifics.
Microsoft President Brad Smith earlier this year said the company declined to sell its facial recognition software to a law enforcement agency in California, saying Microsoft is concerned about its potential abuse and voicing support for government regulation.
And other companies have followed suit, including leading body cam seller Axon, which said late last month that it is banning the use of facial recognition technology on its devices for the time being over civil rights and privacy concerns.
Ting, the state legislator behind California’s legislation, said he worked with Axon on the body cam bill.
But Greer of Fight for the Future warned against swallowing the industry’s guidelines for legislation, saying they are prompted by a desire to make as much money as possible.
“The industry is proactively calling for regulation,” Greer said. “They’re trying to avoid having the initial conversation about whether this technology should even exist in the first place and whether the potential harms to society outweigh the potential benefits at a broad scale.”
Greer’s organization will launch a campaign next week urging Congress to impose an all-out ban on facial recognition tech, she said.
“In the end, we’re going to be using all of that state and local energy to push toward a federal ban,” Greer said. “That’s where, in the end, this needs to be dealt with.”