Gerald Martineau/The The Washington Post

Will Congress actually ban facial recognition?

There are no federal laws regulating the use of facial recognition by police. That might be about to change

In January 2020, Robert Williams had just arrived home from work when he was arrested. As his daughters watched, he was handcuffed and taken to a detention center in Detroit, Michigan. Officers refused to tell him why. He was held for nearly 30 hours.  

Police showed Williams a blurry surveillance photograph taken during a robbery. It wasn’t him. “The cops looked at each other. I heard one say that ‘the computer must have gotten it wrong,” Williams told lawmakers on July 13, during a hearing on law enforcement’s use of facial recognition. 

Williams, who is Black, had been incorrectly identified by facial recognition. 

“It was so backwards,” he said. “I thought I knew the law, and I was wrong.”

The U.S. federal government has not limited law enforcement’s use of facial recognition. The hearing at the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security was tasked with exploring what to do about that.

Why is Congress considering regulating or banning facial recognition? 

Robert Williams is not alone. Research shows that facial recognition is particularly bad at correctly identifying people of color. 

Alongside concerns over bias and accuracy, there is an ongoing national conversation about how facial recognition fits into a broader picture of over-policing communities of color.

“I don’t want anyone to walk away thinking that if only the technology was made more accurate, its problems would be solved,” said Williams, in his written testimony to the subcommittee. 

Facial recognition frequently operates in secret. Often, people don’t know it was used in a police investigation, leaving them unable to challenge it. The U.S. Government Accountability Office, a watchdog agency, found that 20 federal agencies used facial recognition with virtually no oversight. 

However, public opinion on facial recognition is mixed. While 55% of Americans think the government should limit police use of the technology, 65% don’t support an outright ban, according to a 2019 survey by independent research body the Ada Lovelace Institute. 

What are the U.S. laws now? 

There is no nationwide regulation of facial recognition. Guardrails are enacted only at a state, county or city level. In May, Massachusetts imposed one of the first statewide restrictions on police use of the technology. California placed a three-year moratorium on using it in police body cameras. Cities including San Francisco and Portland, Oregon have banned it entirely.  

However, national attempts to regulate facial recognition have repeatedly failed. Last year, the Ethical Use of Facial Recognition Bill did not make it past introduction in the Senate. The 2020 Facial Recognition and Biometric Technology Moratorium Act met a similar fate.

It has also fallen on companies to self-regulate. Amazon and Microsoft have promised not to sell facial recognition to police, while IBM has abandoned its facial recognition products. 

Is there a bipartisan appetite to curb police use of facial recognition?

Seems like it.

Representative Andy Biggs (Republican, Arizona), the subcommittee’s ranking member, said that even if the technology works properly, it remains problematic. 

“I think the issues which we’ve discussed today are not just issues with the accuracy of the technology. I think we’re talking about a total invasion of privacy, which is absolutely unacceptable,” he said. 

Albert Fox Cahn, a privacy expert at the privacy advocacy group Surveillance Transparency Oversight Project, is hopeful that lawmakers are moving in the direction of an outright ban.

 
“People clearly know that Congress has waited too long. I think there are some people who still are using the language of regulation, but when you actually dive into the details of what those regulations look like, a lot of the time, it’s closer to a moratorium than anything else,” he said. 

What would federal regulation even look like?

Some lawmakers, like Representative Ted Lieu (Democratic, California), acknowledged that a ban will be difficult. Representative David Cicilline (Democratic, Rhode Island) weighed whether any amount of regulation would solve the problems with bias and inaccuracy. 

“Is there even any training that might help law enforcement to overcome these inaccuracies, or are they so embedded in the system that we should ban facial recognition?” asked Cicilline.

Other lawmakers questioned whether a warrant should be required for use of the technology, which is not always the case. Subcommittee chairwoman Sheila Jackson Lee (Democratic, Texas) explored whether prosecutors should be required to inform defendants if facial recognition was used.

However, privacy advocates will not be pleased, should federal action fall short of a ban. 

“Facial recognition surveillance is more like nuclear or biological weapons than it is like alcohol and cigarettes. It’s too dangerous to be effectively regulated. We need to simply prohibit its use,” wrote Evan Greer, director of the nonprofit advocacy group Fight for the Future, in a statement following the hearing.

So, will Congress actually do it? 

Hypothetically, we’ll get an answer soon enough. 

“There’s a bill in Congress right now that every single member of that committee should be supporting, if they’re serious about preventing things like what happened to Robert Williams from happening again. If they’re not supporting it, they’re talking out of their butts,” Greer told me. 

Greer is referring to the Facial Recognition and Biometric Technology Moratorium Act. It was first introduced by Democrats in 2020, but it went nowhere. Democrats have reintroduced the bill, which would prohibit federal funding for facial recognition and other biometric technologies, restrict its use by federal agencies and require state and local entities to place their own moratoriums on the tools in order to receive federal money. 

Then there’s the George Floyd Justice in Policing Act, which aims to prevent the use of facial recognition in body cameras. It has passed in the House, but the Senate has yet to vote on it. 

“I’ve given up on predicting what bills will pass and which won’t,” said Fox Cahn. “All I will say is that it really is a good sign that we continue to see lawmakers on both sides of the aisle recognize the urgency of acting.”

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