As law enforcement’s use of facial recognition technology has proliferated, it’s become abundantly clear that federal law has not kept up to protect our privacy. That may soon change, though.
The Facial Recognition Technology Warrant Act, introduced on Nov. 14 by Utah Republican Sen. Mike Lee and Delaware Democratic Sen. Chris Coons, would require a warrant based on probable cause before law enforcement can use facial recognition to surveil a suspect beyond 72 hours. It would also limit the time frame someone could be surveilled to 30 days and would require the surveillance be conducted in a way to “minimize the acquisition, retention, and dissemination of information regarding individuals outside the warrant’s purview.”
This bill comes at the perfect time, as facial recognition technologies are beginning to spread rapidly to law enforcement. The Department of Homeland Security is building a facial recognition database that will include data on 500 million individuals, the FBI already has a database that includes more than 50 million mugshots, and local police agencies all over the country have partnered with Amazon to utilize their facial recognition tool.
Local municipalities have struggled with addressing the concerns these tools raise, largely due to the lack of clear federal guidelines regarding privacy protections and accuracy testing. So, some cities, such as Sommerville, Massachusetts, and San Francisco, California, have recently banned the use outright.
While the Lee-Coons bill would protect innocent people from “ongoing” surveillance via facial recognition tools, it does not do enough to limit law enforcement’s ability to conduct one-off surveillance without a warrant. If police can keep their tracking of a suspect to less than three days, this bill’s crucial probable cause protections would not apply.
Still, the Facial Recognition Technology Warrant Act is a good step in the right direction toward setting standards around law enforcement’s use of a tool that can have devastating civil liberties affects.
Additionally, the bill would offer some much-needed oversight and transparency. The proposed legislation would require annual reporting from the courts to both the House and Senate Judiciary committees on the use of facial recognition. These reports would include such metrics as the number of court orders law enforcement applied for, the number of court orders that were granted, the nature of the crime the individual was suspected of, the number of people subjected to facial recognition, and the number of misidentifications.
This last point is especially crucial to ensure the use of these technologies does not lead to wrongful arrests. Researchers at the Massachusetts Institute of Technology found that while facial recognition tools are often billed as some sort of foolproof method to find suspects, the results are less than stellar. The researchers found these algorithms misidentify the gender of “dark-skinned males” 12% of the time and of “dark-skinned females” 35% of the time. With a probability that high of getting someone’s gender wrong, how can we expect law enforcement to get exact identities correct using these tools? That is exactly why judicial and legislative oversight is so crucial here.
In addition to race, another huge factor in the accuracy of facial recognition is the conditions under which the surveillance takes place. The likelihood of falsely identifying a suspect is much higher in photos of large crowds, photos taken from longer distances, and photos that may be blurry or do not include the suspect’s entire face. Scholars at the University of Notre Dame found “it is clear that face recognition, performed by machines or even by humans, is far from perfect when tackling low-quality face images such as faces taken in unconstrained environments.” Most crime scenes where facial surveillance is being deployed are “unconstrained.”
Facial recognition technology certainly offers benefits to individuals, such as increased security on smartphones. However, in the hands of the government and law enforcement, it is absolutely crucial that more oversight is in place to protect against civil liberties violations and wrongful incarcerations.
Emerging technology has the ability to alter our lives in meaningful and important ways, but, if weaponized by an unchecked government, the same tools that can improve lives can also ruin lives. This bill strikes a good balance of not stifling innovation while holding law enforcement accountable.
Dan King is a senior contributor at Young Voices, where he covers civil liberties and criminal justice reform.
