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The Privacy Advisor | Bipartisan lawmakers look to ban facial recognition in absence of rules Related reading: FTC approves final consent order in Privacy Shield status case

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Elijah Cummings, chairman of the U.S. House Committee on Oversight and Government Reform, remembers well his interaction with facial-recognition technology. It was 2015, and protestors in his native Baltimore were taking to the streets over the death of Freddie Gray. Cummings was there; it was important to him to be. Later, he learned police had used facial-recognition technology to detect protestors with warrants out for their arrests. 

"This issue is personal for me," he said.  

At the committee hearing yesterday, "Facial Recognition Technology (Part 1): Its Impact on our Civil Rights and Liberties," advocates and academics strongly urged lawmakers to immediately act to rectify what they called a dangerous problem for U.S. citizens: the use of facial-recognition technology by both law enforcement agencies and private corporations. 

Four of the five witnesses called on Congress to impose a moratorium on the technology until laws to govern its use can be enacted and essential improvements to the software itself — which would address high-frequency and disproportionate misidentification of women and minorities — can be made.

The problem witnesses articulated wasn't lost on lawmakers. Both sides of the political aisle called for a "pause" on the technology, often repeating the "horse has already left the gate" and now it's time for government to catch up. 

The increasingly pervasive technology relies on the 50 million surveillance cameras currently operationalized in cities across the U.S., and with virtually no laws to govern its use, it's anticipated there will be even greater widespread adoption by government agencies, giving "law enforcement a power it has never had before," Clare Garvie of Georgetown Law's Center on Privacy and Technology testified. Chicago and Detroit have both purchased real-time facial-recognition systems, though Chicago says it doesn't actively use it currently, and pilot programs exist in Orlando, Washington, D.C., and New York City. 

Today, half of all American adults are enrolled in a face-recognition network somewhere, often via law enforcement's access of driver's license photos. The Federal Bureau of Investigation has access to at least 18 states' Department of Motor Vehicles databases, and local law enforcement have access to face-recognition in at least 31 states, according to Garvie. Notably, Vermont determined such an agreement to be against state law and terminated the program in 2017. 

Three years ago, the Government Accountability Office issued a report recommending the FBI make changes to its facial recognition database, noted Cummings in opening the hearing. As of last month, those changes had not yet been made. 

It's hard to know just how widespread its use is, however. Without laws in place, there's no requirement for law enforcement or corporations employing the technology to notify anyone they're doing so. Done in secret, from remote locations, facial scanning "threatens to fundamentally change the nature of America's public spaces." 

Rep. Jim Jordan, R-Ohio, said, "Seems to me it's time for, it's time for a time-out." In his line of questioning, Jordan was often incredulous that "no one in an elected position" had given the OK for 18 state DMVs to share their databases with law enforcement agencies. "That is scary," he said. "It doesn't matter what side of the political spectrum you're on. This should concern us all."

In an interview with The Privacy Advisor after the hearing, Rep. Alexandria Ocasio-Cortez, D-N.Y., said she hopes that's an indication that "we're going to really be able to move it forward in a way that other issues cannot." However, she noted we haven't heard big tech from the witness table yet. "The consensus on this issue I think is bipartisan, but also the opposition is bipartisan as well. You know, big tech is a very strong lobby that has captured a lot of members of both parties."

Ocasio-Cortez also expressed concern during the hearing with the accuracy of the technology itself, a position vehemently argued by witnesses Neema Singh Guliani of the American Civil Liberties Union, as well as Joy Buolamwini, founder of the Algorithmic Justice League. They testified facial-recognition technology has significant algorithmic flaws, often unable to correctly identified women and people of color. In fact, the ACLU conducted a study in 2018 using Amazon's Rekognition software using a database of 25,000 mugshots and searching it across every member of Congress. The software misidentified 28 lawmakers as people who'd been arrested for a crime, and 40 percent of Rekognition's false matches were people of color, "even though they make up only 20 percent of Congress," reported the ACLU.

"So, we have a technology that was created and designed by one demographic that is only mostly effective on that one demographic and they're trying to sell it and impose it on the entirety of the country?" Ocasio-Cortez asked. 

Rekognition has been under the spotlight especially since, as Ocasio-Cortez submitted for the record, Amazon met with Immigration and Customs Enforcement officials to market the technology in 2018. In addition, a police department in Oregon is reportedly using Rekognition to aid in solving misdemeanor crimes such as shoplifting, according to the ACLU, and Orlando's Police Department is reportedly piloting it.

Cedric Alexander, past president of the National Organization of Black Law Enforcement, was the lone witness not to call for a ban or moratorium of the technology but did say lawmakers, software developers, public safety and the ACLU must be at the table in determining the role the technology has. 

"If we're going to utilize this technology in public safety, in law enforcement, I think one thing needs to be made clear to these software manufacturers is that if you're going to develop this technology, there's going to have to be a standard that's being articulated at this table by the scientists in those in the legal communities that are here. It needs to met that standard, if it can't meet that standard, then there's no place for it in our society." 

It does seemingly have a place in Chinese society, lawmakers and witnesses frequently cited. China currently has 200 million surveillance cameras and is "amassing face recognition databases of individuals who have mental illnesses, used drugs or petitioned the government with grievances," according to the ACLU's written testimony.

Georgetown's Garvie said China is a "road map for what's possible with this technology in the absence of rules. In the absence of rules, this is a system where everybody is enrolled in the backend and there are enough cameras to allow law enforcement to track where somebody is any time they show their face in public, to upload their photo and see where they've been in the last two weeks, be that public rallies or alcoholic's anonymous meetings or a rehab clinic. That information is now available at the click of a button. That's what facial recognition looks like with no rules." 

In her interview with The Privacy Advisor, Ocasio-Cortez also said concerns about facial recognition technology are tied to the political reality that there is a "global rise in authoritarianism and fascism." However, she said, lawmakers on both sides of the aisle are fighting that. "Our focus is on democracy and the power of the individual in our country. And I don't want to see an authoritarian surveillance state, whether it's run by a government or whether it's run by five corporations, any more than [Rep.] Jim Jordan does." 

Buolamwini similarly said we should be worried about state surveillance and examples like China. But "Facebook has more people than China," and we "have to be worried about corporate surveillance, too."

In the end, it seems lawmakers are poised for action, though a June hearing will bring law enforcement and potentially industry before the committee, where counterarguments will surely be made. 

However, Rep. Mark Meadows, R-N.C., said to his colleagues and witnesses at the hearing, "I'm here to tell you we're serious on this, and let's get together and work on legislation." 

Find the archived hearing in full here. 

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