Bipartisanship in modern politics can seem kind of like an unbelievable, mythical creature. But in recent months, as Congress considered regulation of one of the most controversial topics it faces — how, when, or if to use facial recognition — we’ve gotten glimpses of a political unicorn.
In two House Oversight and Reform committee hearings last summer, some of the most prominent Republicans and Democrats in the United States Congress joined together in calls for legislative reform. Proponents of regulation ranged from Rep. Alexandria Ocasio-Cortez (D-NY) to Rep. Jim Jordan (R-OH), a frequent Trump supporter on cable news. On Friday, Jordan was also appointed to the House Intelligence Committee to confront witnesses in public presidential impeachment hearings that begin this week.
On the subject of facial recognition regulation, the House initiated hearings because of potential First, Fourth, and Fourteenth Amendment questions raised by the technology.
Calls for such hearings arose from a perceived lack of oversight on the part of law enforcement agencies like the FBI, as well as the technology’s track record of performing poorly on women and people with dark skin tones compared with white men, according to an April report from the Department of Commerce’s National Institute of Standards and Technology (NIST) and multiple audits.
Committee chair Elijah Cummings (D-MD) and Jordan — two of the best-known members of their respective parties — were in the process of drafting a bill, Vox reported this summer, but that did not come to pass. Cummings passed away on October 17.
Before he died, Cummings called the hearings a demonstration of significant bipartisan concern about the use of facial recognition “by our government against our people without adequate safeguards.”
“I believe there should be front-end accountability for law enforcement’s use of facial recognition technology. I also believe that people should be informed of their participation in a facial recognition technology system and should be able to ‘opt-in’ when possible,” Cummings said in a statement provided to VentureBeat for this story before his passing. “This technology is evolving extremely rapidly, without any [real] safeguards, whether we are talking about commercial use or government use. There are real concerns about the risks that this technology poses to our civil rights and liberties, and our right to privacy.”
The committee’s work followed the introduction of the Commercial Facial Recognition Privacy Act of 2019, which would require businesses to receive consent before using facial recognition software. It was introduced by Senators Roy Blunt (R-MO) and Brian Schatz (D-HI).
Lawmakers in democratic societies around the world are scrambling to decide when and where such protections should be applied. Standards and models for how to treat facial recognition technology are popping up in multiple countries and with varying results. France and India are creating national facial recognition databases, China leans toward dystopian deployment in subways and crosswalks, and the European Commissioner reportedly plans to introduce a facial recognition law in line with existing major privacy protections.
Facial regulation’s left-leaning roots
In Congress, Democrats and Republicans alike have expressed interest in regulating facial recognition. But on a local level, efforts to regulate governmental use of facial recognition have been led by left-leaning municipalities.
Cities like San Francisco and New York, and state legislatures in Michigan and New Jersey, have been among the first to tackle the subject. This fall, California passed a three-year moratorium on facial recognition use in law enforcement body cameras. Conversation in these cases tends to vacillate between the need for a temporary moratorium and a permanent ban.
In May, San Francisco became the first to ban facial recognition use by police or city departments as part of a broader bill that creates a process for review of government surveillance technology. In June, Somerville, Massachusetts (near Harvard University and Boston) passed a similar ban, and in July, Oakland, California passed one as well. More recently, Berkeley, California passed a facial recognition ban, and Springfield, Massachusetts has considered one.
Ethicists and privacy activists like Oakland lawyer Brian Hofer favor an outright ban. Hofer helped coauthor legislation in San Francisco, Oakland, and Berkeley and finds facial recognition to be an irredeemable technology.
“I believe strongly that the technology will get more accurate, and that’s my greater concern, that it will be perfect surveillance,” he said. “It’ll be a level of intrusiveness that we never consented to the government having. It’s just too radical of an expansion of their power, and I don’t think walking around in my daily life that I should have to subject myself to mass surveillance.”
Others, like Clare Garvie, believe a moratorium is appropriate to give communities time to consider regulation. A senior associate at the Georgetown University Center on Privacy and Technology, Garvie testified before Congress about facial recognition earlier this year.
Garvie works as part of the Perpetual Lineup project to document facial recognition use by local law enforcement. In its documentation in recent years, the project found virtually no oversight or standardization of facial recognition use by police across the U.S. Its most recent assessment last spring found that some departments use composite sketches or partial images to identify suspects with facial recognition — methods that can produce highly inaccurate results. Records obtained by the project found attempts by the NYPD to run a picture of actor Woody Harrelson through a facial recognition system because officers thought the suspect seen in drug store camera footage resembled the actor.
Before a moratorium is lifted, Garvie said she wants to see minimum photo quality standards, accuracy testing, and publicly available reports — like the kind mandated in San Francisco’s law — on how the government uses facial recognition tech.
The effect of proximity to tech centers
We don’t yet know much about people’s attitudes toward facial recognition and the extent to which it breaks down along partisan lines, but recent polls have shed some light on the matter.
A Pew Research survey released in September offered one of the first glimpses into it. The survey of 4,000 U.S. adults found that 65% of Republicans trust police with facial recognition, compared to 51% of Democrats.
Brooks Rainwater is director of the Center for City Solutions at the National League of Cities and is following the growing trend of facial recognition adoption by local governments. Cities exploring facial recognition regulation are almost all in blue parts of the country thus far, like New York, where a bill is being considered to regulate business use of the technology and ensure landlords don’t replace physical keys with facial recognition, and in Portland, where city officials are considering a ban on private sector use of facial recognition.
Rainwater thinks local governments have been first to act because they’re able to pass legislation more quickly than Congress, but lawmakers at the regional and state levels are also grappling with how and when this technology should be used. Democrats and Republicans may approach facial recognition in different ways, but there’s concern on both sides, Rainwater noted. He said the fact that “dark blue” cities are the first to legislate facial recognition policy in the U.S. is likely a reflection of those cities’ proximity to the tech industry.
“I don’t think it’s necessarily that [partisan] dynamic so much as … cities that are on the bleeding edge from a technology perspective,” he said. “These are areas that are very well-versed in technology and its implications, and so the councilmembers, the mayors — all of them are very much invested in the larger technology conversation happening within cities.”
The fact that surveillance camera networks are also largest in cities, according to Comparitech analysis, may be another factor.
Margaret O’Mara worked in the Clinton administration for Al Gore, but for the last decade she’s been a University of Washington professor focused on the history of national politics and tech policy. She agrees with Rainwater that proximity to the tech industry may have played an instrumental role in regulation efforts like those seen in the Bay Area or in the state of Washington, where lawmakers considered a facial recognition moratorium last year.
In tech policy battles, like the kind that took place over commercial internet in the 1990s, a small cadre of lawmakers on both sides typically become subject matter experts, but as the issue moves forward, lawmakers tend to attach their own political priorities.
For Republicans, that can mean ensuring police get to use facial recognition as they see fit. For Democrats, it can translate to the protection of civil liberties and privacy. Arguments by left-leaning cities include fears of abuse by federal immigration officials like ICE, overpolicing in communities of color, and a growing understanding that facial recognition systems have a history of underperforming for people of color, particularly women.
The emergence of pockets of facial recognition regulation in early 2019 was also part of concerted efforts by organizations like the Electronic Frontier Foundation (EFF) and American Civil Liberties Union (ACLU). The EFF was part of a coalition that campaigned for a police body camera moratorium in California, while the ACLU helped draft legislation in multiple cities that voted to pass bans.
In recent weeks, the ACLU filed a lawsuit against the FBI, Department of Justice (DoJ), and Drug Enforcement Agency (DEA) for failure to respond to freedom of information requests and government agency use of facial recognition tools from AWS and Microsoft. The ACLU has also waged a persistent media campaign to increase public awareness of performance bias in Rekognition, AWS’ facial recognition tech, by using it on members of Congress, the California state legislature, and even NFL players.
“That is a very tried and true and effective strategy,” said O’Mara. “If you go back 100 years to the Progressive Era, reformers who wanted to change the system started at the state and local level and moved their way upwards, and that was a very effective way to do it.”
Back in the 1990s, when policy for today’s commercial internet was being created, organizations like the EFF also helped shape policy by meeting with lawmakers on both sides of the aisle, including former House Speaker Newt Gingrich (R-Ga.) and Sen. Ed Markey (D-Mass.).
Broader tech issues
Facial recognition regulation is not the only tech issue that’s getting bipartisan support; efforts to regulate tech giants and better protect user privacy on other fronts are also gaining ground.
In late October, Sens. Mark Warner (D-Va.), Richard Blumenthal (D-Conn.), and Josh Hawley (R-Mo.) worked together to introduce the ACCESS Act, a bill requiring social media companies like Facebook to make user data portable. (Doing so could help make way for social media alternatives to Facebook.) In July 2018, Facebook, Google, Microsoft, and Twitter became inaugural members of the Data Transfer Project to move data between platforms.
“It’s really intriguing because we’re in a moment where Republicans and Democrats really don’t agree on anything, [but] on many issues of tech regulation, they’re sort of strange political bedfellows,” O’Mara said.
It appears feelings of existential threat can inspire lawmakers to work together.
Local and national lawmakers in the U.S. cite facial recognition applications in China — where the technology is being used to track dissidents, catch criminal suspects, scan subway passengers, power commerce, and publicly shame jaywalkers — as concerning.
This kind of widespread implementation, and the prospect of similar privacy invasions at home, have generated a sense of urgency among lawmakers on both sides of the aisle.
“What the Chinese government has done very effectively is deployed facial recognition on a broader basis, and people look across to China and kind of see where it’s going. And I think our thing was ‘Let’s pump the brakes on this a little bit,’ and that’s fair,” O’Mara said.
The fight around facial recognition is separate from antitrust regulatory efforts to break up big tech monopolies, though there is some overlap. But concerns about the biggest tech companies’ dominance is an issue that has also garnered some semblance of bipartisan support.
“[Tech regulation] is going to be the defining issue of the next decade,” O’Mara said. “I see it as sort of dominating the policy conversation in the way that the regulation of big oil and railroads and steel in the first decade of the 20th century was a dominant conversation.”
O’Mara said the current political moment reminds her of attempts to regulate the modern commercial internet in the 1990s and of the antitrust issues that arose during Teddy Roosevelt’s presidency (1901-1909).
“I’ve studied that past era deeply, and the parallels are striking. It’s not history repeating itself, but it’s no surprise that these very large companies have come under such sharp regulatory scrutiny simply because they are too big to ignore and escape,” she said. “I mean, these large companies are pretty nervous because it’s not just one party that’s criticizing them; it’s both.”
On both the local and national level, there seems to be a growing interest in facial recognition regulation.
In local politics, lawmakers in left-leaning cities are first to introduce and passed regulation. In Congress, Rep. Carolyn Maloney (D-N.Y.) is acting chair of the Oversight and Reform Committee, but Cummings’ death appears to have left a power vacuum, and Jordan seems busy defending the president against impeachment. The committee could return to legislation that was reportedly being drafted by Cummings and Jordan or advance a bill to ban facial recognition in most public housing facilities that was cosponsored by committee members Rep. Ayanna Pressley (D-Mass.) and Rep. Rashida Tlaib (D-Mich.).
In the near term, politicians from both parties and committee staff will likely remain busy with impeachment hearings that begin this week. Jordan may also face continued scrutiny from a very different source: In a lawsuit filed last week, a second person came forward to accuse him of ignoring sexual molestation allegations by a team doctor when he was an assistant coach of the Ohio State University wrestling team in the 1990s.
However recent efforts to regulate facial recognition in Congress turn out, lawmakers from all levels of government and political parties are likely to continue facial recognition regulation efforts until meaningful national action is taken, because in contrast to virtually every previous form of identification, you can’t hide or opt out of your face.