Congress proposes ban on government use of facial recognition software

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Members of Congress introduced a new bill on Thursday that would ban government use of biometric technology, including facial recognition tools.  

In a joint statement, Sens. Edward Markey and Jeff Merkley, and Reps. Pramila Jayapal and Ayanna Pressley announced the Facial Recognition and Biometric Technology Moratorium Act, which they said resulted from a growing body of research that “points to systematic inaccuracy and bias issues in biometric technologies which pose disproportionate risks to non-white individuals.”

The bill came just one day after
the first documented instance of police mistakenly arresting

a man due to facial recognition software. There has been
long-standing, widespread concern about the use of facial recognition

software from lawmakers, researchers rights groups and even the people behind the technology. Multiple studies over the past three years
have repeatedly proven that the tool is still not accurate

, especially for people with darker skin.

IBM, Amazon and Microsoft, the leading developers of the technology,
acknowledged the technology’s inaccuracies

and last week
put a self-imposed moratorium in place

in light of the recent global protests against police brutality and racism. All three companies called for Congress to introduce legislation that would govern how law enforcement uses the technology. 

“Facial recognition technology doesn’t just pose a grave threat to our privacy, it physically endangers Black Americans and other minority populations in our country. As we work to dismantle the systematic racism that permeates every part of our society, we can’t ignore the harms that these technologies present,” Markey said in a statement. 

“I’ve spent years pushing back against the proliferation of facial recognition surveillance systems because the implications for our civil liberties are chilling and the disproportionate burden on communities of color is unacceptable. In this moment, the only responsible thing to do is to prohibit government and law enforcement from using these surveillance mechanisms,” Markey said in the statement.

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According to the text of the bill, Congress would put a moratorium on the use of facial recognition until lawmakers passed a law to lift the temporary ban.

Police departments that continue to use the technology would lose federal funding and the bill also seeks to bar federal agencies from using it as well. The lawmakers said the ban would also include voice recognition software, which CNET reported has been marketed to the Drug Enforcement Agency by Microsoft. 

Merkley and other lawmakers have previously tried to place limits on where facial recognition software is used but the bills have gained little traction, forcing states and cities to pass laws on their own. Most recently, the city of Boston, MA banned its police department from using the technology and San Francisco did so last year.  

“Facial recognition technology is fundamentally flawed, systemically biased, and has no place in our society. Black and brown people are already over-surveilled and over-policed, and it’s critical that we prevent government agencies from using this faulty technology to surveil communities of color even further,” Pressley said in a statement.  

“This bill would boldly affirm the civil liberties of every person in this country and protect their right to live free of unjust and discriminatory surveillance by government and law enforcement. As the representative of two of the first cities on the east coast to outlaw the use of this technology, I’m proud to sponsor this bill and make clear that our government has no business spying on its civilians,” Pressley said in a statement.

Last year, the Washington Post revealed that since 2011, 390,000 facial recognition searches were logged by the FBI alone and that Immigration and Customs Enforcement officers use the technology profusely with state driver’s license databases. Both Republican and Democratic lawmakers have criticized law enforcement agencies for using this technology without any authorization from Congress.

“No individual signed off on that when they renewed their driver’s license, got their driver’s licenses. They didn’t sign any waiver saying, ‘Oh, it’s OK to turn my information, my photo, over to the FBI.’ No elected officials voted for that to happen,” said the House Oversight Committee’s ranking Republican Rep. Jim Jordan during a hearing last year. 

The Government Accountability Office reported in 2019 that 21 states and Washington, D.C. have given federal law enforcement agencies the power to scan driver’s license photos. 

Researchers with Georgetown Law’s Center on Privacy and Technology were able to get documents showing that in some instances, law enforcement officers did not need a court order or subpoena to search the databases. Many times officers simply emailed the DMV office. 

Experts weigh in

Technology experts have been wary of outright bans on facial recognition software because it is already out in the marketplace and will be used no matter what. But many have called for regulations to tailor how it is used and for technologists of color to help work on making it more accurate. 

“When there is not a diverse team of people on the product development team for such a sensitive technology with the potential for intrusiveness on an individual level, this problem–and it is a catastrophic one–is all but inevitable. It’s quite likely that the majority of technology creators are not underrepresented persons and create products with algorithmic bias,” said Chloé Messdaghi, vice president of Strategy at Point3 Security.

“We assume that if a technology works for us, it will work for others who aren’t like us–a wrong and dangerous assumption. I’m not a big fan of facial recognition technologies for other reasons as well. It automates surveillance without a legal or regulatory framework. It may well violate the individual’s right to privacy because it denies citizens of the opportunity to give or withhold consent, and in doing so, infringes on the right to freedom of association, assembly, and expression. These are some reasons why–at a minimum–notification that facial recognition is in use is key, and preferably, consent should be requested and secured,” Messdaghi said.

Erich Kron, security awareness advocate at KnowBe4, explained that there are some practical uses in low-stakes applications for facial recognition technology, but that deploying it in law enforcement or criminal investigations is “still a matter of the cart getting ahead of the horse.”

Millions of people already use facial recognition on a daily basis with their iPhone for face unlock or to enter some apartment buildings. But these examples involve people personally opting in to having their face scanned as opposed to how law enforcement and some airports are now using it. 

There need to be clear notifications of its usage in public spaces and opportunities to opt out, he said.

Lou Morentin, vice president of compliance and risk management at Cerberus Sentinel, said there was a need for federal legislation because right now, states and cities have created “a hodgepodge of regulations.”

“Privacy regulations today are not easy to navigate as each state, like California, have implemented laws to protect individual privacy related to data. Add to this mix having multiple state regulations around images of the residents of the respective state, and things get dicey,” Morentin said. 

“Americans place a high value on their freedom, and while someday, this software may be proven valuable, at this time, it represents a potential violation of individual privacy and liberty. Failure to act to put in some controls at the national level may open a pandora’s box of litigation that comes with a lack of cohesive regulations and huge potential financial costs.”

Other civil rights groups have echoed these concerns, saying the
false arrest of Robert Williams

due to mistakes by facial recognition software is only the first one we have heard about.

Dozens of law enforcement agencies use the technology every day and there is little information about how it is being used or whether more mistakes are being made. 

“This is not just some Orwellian technology of the future—it’s being used by law enforcement agencies across the country right now, and doing harm to communities right now. Congress should pass this bill as soon as possible,” said Evan Greer, deputy director of rights group Fight for the Future.

“Even seemingly innocuous uses of facial recognition, like speeding up lines or using your face as a form of payment, normalize the act of handing over sensitive biometric information and pose a serious threat to security and civil liberties,” Greer said.

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