Facial Recognition Laws in the United States #ProjectPanoptic

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tl;dr

What can we learn about facial regulation from other countries? In this post, we will be exploring how use of facial recognition technology (FRT) has been regulated in the United States of America post 2020. We will specifically take a look at how political & social movements have affected these attempts at regulating the technology. This is the first of a three part series which will take a look at how various jurisdictions around the world are responding to this technology.

FRT regulation in USA

The USA is a federal republic and thus, its citizens are subjected to regulations at the local, state and federal levels. The table below illustrates the different regulations in place currently at the city and state level. (Source of information: https://www.banfacialrecognition.com/map/)

City/State Date of Action Stance on FRT
Alameda, California December 17, 2019 Ban
Baltimore, Maryland September 30, 2020 Ban
San Francisco Bay Area, California September 14, 2018 Transparency and accountability rules
Berkeley, California October 16th, 2019 Ban
Boston, Massachusetts June 24, 2020 Ban
Brookline, Massachusetts December 11, 2019 Ban
California October 19, 2019 California Biometric Surveillance Bill which effectively bans Police use of FRT
Cambridge, Massachusetts January 13, 2020 Ban
Davis, California March, 2018 Ordinance requiring Police to demonstrate that benefits of FRT use outweigh any possible harms to civil rights
Jackson, Mississippi August 20, 2020 Ban
Madison, Wisconsin December 1, 2020 Ban
Minneapolis, Minnesota February 12, 2021 Ban
Nashville, Tennessee June, 2017 Ordinance limiting the unchecked use of surveillance technologies
New Orleans, Louisiana December 17, 2020 Ban
New York December 22, 2020 Four year moratorium on facial recognition in schools
Northampton, Massachusetts December 19, 2019 Ban
Pittsburgh, Pennsylvania September 22, 2020 Ordinance requiring the legislative body to give its approval prior to police use of facial recognition technology.
Portland, Maine September 9, 2020 Ban
Portland, Oregon September 9, 2020 Ban
San Francisco, California May 14, 2019 Ban
Santa Clara County, California June 7, 2016 Law requiring agencies to create transparent policies regarding the use of surveillance technology and issue annual reports on its use
Seattle, Washington July 21, 2017 Ordinance requiring public participation when local police departments acquire surveillance technologies.
Somerville, Massachusetts June 27, 2019 Ban
Springfield, Massachusetts February 4, 2020 Moratorium
Texas September 1, 2017 The Texas Business and Commerce Code prohibits the use of facial recognition data unless whoever collects the data "inform[s] the individual before capturing the biometric identifier and receive[s] the individual's consent."
Vermont October, 2020 Ban

In addition to these bans, ordinances, and regulations, several jurisdictions are in the process of enacting laws to regulate FRT. In the next section we will take a look at the various factors that have played a role in the regulation of this highly intrusive technology.

Highlights: Factors affecting the regulation of FRT in USA

A. Foundational analysis by a cross sections of experts & activists

The usage of FRT started receiving criticism from privacy and civil liberties organizations once it was determined that the use of this technology would lead to exclusionary and discriminatory outcomes. In 2016, the Georgetown Center for Privacy and Technology released a report titled, “The Perpetual Line-up: Unregulated Police Face Recognition In America” which said that, among other issues, use of FRT by the police would disproportionately affect and be least accurate for African Americans.

In 2018, researchers Joy Buolamwini and Timnit Gebru in their paper titled, “Gender Shades: Intersectional Accuracy Disparities in Commercial Gender Classification” found that facial recognition systems had higher error rates while identifying women and people of color, with the error rate being the highest while identifying women of color. (Visit the project website here)

On July 26, 2018, the ACLU published the results from a test which found that Amazon’s facial recognition software “Rekognition” incorrectly matched 28 members of the US Congress with people who had been arrested for committing a crime. Of those members who were incorrectly matched, 40% were people of color which is a disproportionate number since people of color make up only 20% of the US Congress.

On June 3, 2019, the ACLU led over 60 privacy, civil liberties, civil rights, and investor and faith groups in urging the US Congress to put in place a federal moratorium on FRT for law enforcement and immigration enforcement purposes until they fully debate what, if any, uses should be permitted. The coalition included, among others, organisations such as Fight for the Future, the Electronic Frontier Foundation, the Algorithmic Justice League and the Georgetown Center for Privacy and Technology.

As a result of these actions as well as other research conducted independently, many cities across the USA started thinking about how to regulate FRT, specifically police use of FRT, leading to multiple bans across the country in pre-2020.

B. The Black Lives Matter Movement

The Black Lives Matter Movement, which started in 2013, is a political and social movement which highlights racial inequities and demands racial justice specifically with regard to the disproportionate violence faced by African Americans at the hands of the police in the USA. The movement returned to global spotlight again on May 26, 2020 after protests broke out all over the USA against the murder of an African American man (George Floyd) at the hands of a White police officer.

It was during these protests that multiple reports of the use of FRT by the police against protesters started emerging. There was a massive public outcry with regard to how the excessive high-tech surveillance of African American activists and reporters was driving police brutality. The protests led to heightened scrutiny into how this invasive surveillance technology is used not only to over-police and racially profile minorities but also to strip aways basic rights such as the freedom of speech and the right to protest. In response to this, companies such as IBM, Amazon and Microsoft announced that until federal laws are put in place, they will not be selling FRT to the police.

C. January 6, 2021 Capitol Riot

The positive changes brought about by the Black Lives Matter movement were however brought to naught in the aftermath of the riots which took place at the US Capitol on January 6, 2021. Use of FRT by police and security agencies like the Federal Bureau of Investigation (FBI) was one of the foremost ways in which rioters who stormed the Capitol were being identified. This posed a complexity for regulation and is an ongoing process of policy debate as a federal level ban is considered.

Ongoing development of FRT regulation in USA

Demands for a federal legislation on FRT have been increasing over the past two years. Multiple bills on FRT such as 2019’s Commercial Facial Recognition Privacy Act, 2020’s Ethical Use Of Facial Recognition Act, and Facial Recognition and Biometric Technology Act of 2020, were introduced but never moved forward. The George Floyd Justice In Policing Act and Advancing Facial Recognition Act failed to be adopted.

In February, 2021, civil rights groups again wrote to the Government calling for a federal ban on the use of this technology. In April, 2021, US Sens. Ron Wyden and Rand Paul introduced a bipartisan bill titled the “Fourth Amendment Is Not for Sale Act” which would ban the U.S. government and law enforcement agencies from buying user data without a warrant. The Fourth Amendment of the US Constitution protects individuals from unreasonable searches and seizures. In Katz v. United States, 389 U.S. 347, 361 (1967), the United States Supreme Court established that the Fourth Amendment protects legitimate or reasonable expectations of privacy where:

  1. a person has exhibited an actual (subjective) expectation of privacy, and
  2. the expectation is one that society is prepared to recognize as “reasonable.”

The Bill is aimed specifically at the notorious Clearview AI which is infamous for illegally pulling images from social media and other websites such as Facebook, Google and Twitter for its technology.

We hope this analysis helps guide researchers, advocates and groups in India on the path forward for crafting a legal framework for FRT regulation in India that may include banning its deployment for specific purposes.

FRT regulation around the world

Under IFF’s Project Panoptic, we have called for a ban on government entities, police and other security/intelligence agencies using FRT. In this series, we will be taking a look at how our stance measures up against developments on FRT regulations around the world. For the second post in this series we will be focussing on Europe, so stay in touch with us and keep following Project Panoptic.

Important documents

  1. Project Panoptic’s petition calling for a ban on government use of FRT (link)
  2. IFF's Legal Notice to the NCRB on the Revised RFP for the National Automated Facial Recognition System dated July 15, 2020 (link)

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