Creating rules for facial recognition technology is a low priority on Capitol Hill, making it seem Microsoft is acting against its own interests by requesting regulations in the interest of consumer privacy. But the tech giant’s request is being greeted with skepticism.
Microsoft president Brad Smith requested the government’s intervention, shaped by an expert commission, in a recent blog post warning of “issues that go to the heart of fundamental human rights.”
Smith noted that Congress set up the 9/11 Commission for a credible study, and formed 28 commissions in the past decade to analyze issues like military modernization. “The key is for lawmakers to use the right mechanisms to gather expert advice,” he wrote.
Although seemingly forward-thinking, policy experts scoffed at the proposed panel, saying it may be guided by self-interest.
“Microsoft’s call for regulation was, in general, a good thing. But the commission idea is the one aspect of their blog post which is clearly a bad idea,” said Alvaro Bedoya, executive director of the Center on Privacy & Technology at Georgetown University.
Bedoya said a commission could devolve into gridlock, as happened with facial recognition discussions convened by the National Telecommunications and Information Administration.
The NTIA’s most recent attempt at stakeholder consensus ended in 2016 after privacy groups quit in protest. The discussions resulted only in recommended transparency and voluntary restraint. Critics led by Bedoya blasted the ideas as “not worthy of being described as ‘best practices’.”
Bedoya said experience makes him deeply skeptical of a commission. “Congress should regulate, not an unaccountable commission that works outside of the public eye,” he said.
“Let’s not forget that we tried to have privacy advocates and businesses negotiate non-binding best practices for face recognition, and those talks broke down in 2015 when no industry group or business would agree to even the most basic limitations on their use of the technology,” he said. “All privacy advocates — all of them — walked out of that negotiation.”
So far, facial recognition is subject to few rules, and no member of Congress is spearheading legislation to change that. Microsoft declined to comment beyond the blog post, and would not discuss their engagement with lawmakers.
The Washington Examiner contacted a half-dozen lawmakers active on privacy and technology issues, but none said they would push Microsoft’s proposal.
Brenda Leong, senior counsel at the Future of Privacy Forum, said she doesn’t know what motivated Microsoft, but that potential explanations include wanting to stall regulations by kicking deliberation to a committee, or a desire to influence inevitable rules.
Leong said she also could imagine a corporate desire to “prevent a bunch of variation at the state level.” States increasingly are considering bills governing biometric data, and lawsuits in Illinois argue a 2008 biometric law is being flouted by Facebook and Shutterfly when they use facial recognition without explicit user consent.
Leong said she sees the possibility of regulations requiring opt-in, similar to Europe’s new General Data Protection Regulation, under which Facebook seeks consent before using facial recognition to recommend photo tags.
It’s not only corporate use that’s potentially subject to regulation. At least half of adults have their photo in a facial recognition network that authorities can search without a court order, researchers led by Bedoya wrote in a 2016 report describing a “perpetual line-up.”
A recent law enforcement use occurred following the Capital Gazette newsroom shooting in Maryland, where authorities identified suspect Jarrod Ramos using technology that searched a driver’s license database.
In other countries, notably China, facial recognition is deployed in real-time, though current technology limits the number of faces that can be searched. In April, however, a man wanted for “economic crimes” was ID-ed at a 60,000-person concert.
Leong said she’s skeptical Congress will do much ahead of the November election, but Microsoft’s president expressed confidence that the matter will have its day.
“We benefit from the checks and balances of a Constitution that has seen us from the age of candles to an era of artificial intelligence,” Smith wrote. “As in so many times in the past, we need to ensure that new inventions serve our democratic freedoms pursuant to the rule of law.”
