The recent arrest of Robert Williams, a Black man in Michigan who was misidentified by facial recognition technology as a theft suspect, is the latest example of why Congress needs to ban government use of the biometric surveillance tool, U.S. Sen. Ed Markey said during a virtual news conference Sunday.
The Massachusetts Democrat introduced a facial recognition bill this week with Rep. Ayanna Pressley, another Massachusetts Democrat; Sen. Jeff Merkley, an Oregon Democrat; and Pramila Jayapal, a Washington Democrat.
“What happened to Mr. Williams is unacceptable, but not surprising,” Markey told reporters Sunday afternoon. The criminal justice system is already rigged against Black and brown Americans. We have to act with urgency to ensure that this technology doesn’t become a new tool in the 21st century to subjugate and fill the system with people of color.”
Markey has criticized the use of facial recognition technology for years. In 2017, he called on the U.S. Department of Homeland Security to halt expanding its biometric exit program, which requires airport travelers to submit a facial scan, until Congress reviews the practice. He was among a group of lawmakers who raised concerns to Amazon about its own technology, Rekognition, being sold to law enforcement agencies across the country.
While Somerville, Northampton and, most recently, Boston, have moved to ban government use of the technology, the technology is used by law enforcement in other U.S. cities. Williams, 47, of Farmington Hills, was arrested in front of his family on suspicion of stealing five expensive watches from a Shinola store in Detroit in 2018, according to the Associated Press. His driver’s license photo was erroneously flagged as a likely match with the person on the store’s surveillance video.
A warrant was approved but dismissed earlier this year because the Shinola employee who identified Williams in a photo lineup wasn’t at the store when the theft happened, according to the AP. An investigator previously noted the surveillance footage wasn’t clear enough to identify the suspect.
Detroit Police Chief James Craig apologized for the arrest. Williams’ DNA, fingerprints and mugshot are now being removed from police files, the AP reported.
“They aren’t just invading our privacy. They aren’t just being casual in what they’re doing,” Markey said. “They’re relying on algorithms that are proven to be faulty. The algorithms have already proven to be racist.”
Facial recognition technology has raised concerns among civil rights advocates and elected officials who argue the tool invades privacy and also fails to accurately identify women and people of color.
In a 2018 experiment, the ACLU tested Amazon’s Rekognition software on members of Congress, finding the software misidentified 28 congressional members as people who were arrested for a crime. The Congressional Black Caucus expressed its concerns in a May 24, 2018 letter to Amazon CEO Jeff Bezos.
Markey was also misidentified by the technology in the ACLU test.
The ACLU of Massachusetts launched “Press Pause on Face Surveillance” in the summer of 2019 highlighting civil liberty concerns posed by the technology, especially when used by government agencies.
“Does anyone in Somerville think that it would be a good idea to pass a new law that would require everyone who lives here, any visitor passing through Somerville to wear a permanent identification badge on their chest anytime they go out into public?” Somerville City Councilor Ben Ewen-Campen asked last year, after proposing a ban in Somerville.
In June 2019, Somerville became the second U.S. city, followed by San Francisco, known to ban government use of facial recognition technology. Several Massachusetts communities have followed suit, including Cambridge, Brookline, Northampton, Springfield and Boston.
Dozens of higher education institutions, including Harvard University, Massachusetts Institute of Technology and Boston University, have agreed not to implement the technologies on their campuses.
A statewide moratorium on facial recognition technology is being considered in the Massachusetts State House’s Joint Committee on the Judiciary, though it is unclear when or even if such a bill will be passed. The bill received an extension until the end of the committee’s session
Markey’s bill bans the federal government from using biometric surveillance technology, including in international airports and other ports of entry in the U.S. Under the bill, a government agency or official who is found violating the facial recognition ban could be sued by victims or a state’s attorney general. That provision also applies to federal contractors.
The legislation also would ban the use of federal dollars for biometric surveillance and bar states and municipalities from getting funds from the Edward Byrne Memorial Justice Assistance Grant Program if unless they enact their own temporary bans on the technology.
The legislation does not prohibit federal entities from researching facial recognition technology or conducting audits to analyze the accuracy of a biometric surveillance system, accuracy rates by gender, skin color and age, among other standards.
Evan Greer, deputy director of the nonprofit Fight for the Future, said the technology misidentifies nonbinary people and other LGBTQ people. More than 40 music festivals agreed not to use the technology after Greer led a campaign with Rage Against the Machine guitarist Tom Morello to halt the practice.
“This is a technology that exacerbates and automates existing forms of discrimination, not just within policing, but within our criminal justice system, within academic institutions and within our society as a whole,” said Greer, a nonbinary trans femme activist who lives in Boston.
“We have not endorsed any other facial recognition legislation that has come out of the Senate. In fact, we have opposed most facial recognition legislation as being full of loopholes or backed by big tech companies,” Greer said. “So the fact that this legislation has secured our and our coalition’s endorsement is what tells you this is the real deal.”
Asked why he didn’t propose an outright ban, instead banning government use based on the commerce clause, Markey said he preferred an outright ban but thought he could garner more support with a bill banning government use and tying federal funds to local moratoria.
“Our feeling was that this was the best way to gather the support to build a coalition that could work so that we would deny the funding to localities if they did not comply,” Markey said. “It was a decision towards effecting an end and using federal funding as the best route to do it.”