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With the start of an impeachment trial; talk of mounting hostility with Iran; new trade deals with China, Canada, and Mexico; and the final presidential debate before the launch of the Democratic presidential primary season, you might’ve missed it, but this was also a momentous week for facial recognition regulation.
A bipartisan group in Congress wants action, roughly a dozen state governments are considering legislation, and news broke Thursday that the European Commission is considering a five-year moratorium on facial recognition among its potential next steps. This would make the EU body the largest government in the world to halt deployment of the technology.
In Washington, D.C. this week, the House Oversight and Reform Committee pledged to introduce legislation in the “very near future” that could regulate facial recognition use by law enforcement agencies in the U.S. As in hearings held last summer, members of Congress exhibited a fairly unified bipartisan position that facial recognition use by the government should be regulated, and in some cases limited. But until this week, the future of sweeping facial recognition regulation seemed uncertain.
Congress on Civil Rights, the Constitution, and facial recognition
Lawmakers seem to be acknowledging the dangers inherent in the current lack of standards for facial recognition use by businesses; governments; and local, state, and federal law enforcement.
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One major area of focus is potential violation of the First Amendment right to freedom of assembly, and the idea that facial recognition might be used to identify people at political rallies or track political dissidents at protests.
“It doesn’t matter if it’s a President Trump rally or a Bernie Sanders rally, the idea of American citizens being tracked and cataloged for merely showing their faces in public is deeply troubling,” Jordan said.
“The urgent issue we must tackle is reigning in the government’s unchecked use of this technology when it impairs our freedoms and our liberties. Our late [chair] Elijah Cummings became concerned about government use of facial recognition technology after learning it was used to surveil protests in his district related to Freddie Gray. He saw this as a deeply inappropriate encroachment on the freedom of speech and association, and I couldn’t agree more,” Jordan said.
Another reason lawmakers are anxious to regulate facial recognition: civil rights protections and the great potential for racial discrimination.
Analysis by the Department of Commerce’s National Institute for Standards and Technology (NIST) found last month that some facial recognition systems are anywhere from 10 to 100 times more likely to misidentify groups like the young, elderly, women of color, and people of Asian or African descent.
Facial recognition systems that exhibit discriminatory performance, lawmakers contend, can exacerbate existing prejudices and over-policing of schools and communities of color.
NIST’s analysis follows studies in 2018 and 2019 by AI researchers that found misidentification issues with popular facial recognition systems like Amazon’s Rekognition. Amazon has not agreed to have its AI analyzed by NIST, director Dr. Charles Romine told Congress this week.
Romine referred to ongoing talks between NIST and Amazon on the subject of Rekognition review by the federal government.
Indeed, if any one company seemed to draw the committee’s attention or ire, it’s Amazon.
Amazon has lobbied members of Congress on the subject and has stated a willingness to sell its facial recognition to any government agency. Amazon reportedly marketed Rekognition to ICE officials, but the extent to which facial recognition is being sold to government agencies is still unknown. In a shareholder vote last summer, Amazon chose to continue selling facial recognition services to governments.
Lawmakers say another big factor behind their urgency is China. In the EU; Washington, D.C.; and on the state and local level across the U.S., lawmakers have frequently cited China’s use of facial recognition to strengthen an authoritarian state as a future they want to avoid.
Meredith Whittaker is an AI Now Institute cofounder and former Google employee. In testimony earlier this week, she talked about how facial recognition is often used by those in power to monitor those without power. Last month, the AI Now Institute called for a ban on business and government use of facial recognition technology.
“I think it is a model for authoritarian social control that is backstopped by extraordinarily powerful technology,” Whittaker said about China’s use of facial recognition software. “I think one of the differences between China and the U.S. is that there, the technology is announced as state policy. In the U.S., this is primarily corporate technology that is being secretly threaded through our core infrastructures without that kind of acknowledgment.”
Washington State’s impact on facial recognition regulation
A handful of cities put facial recognition bans and moratoriums in place in 2019, but in 2020 state legislatures are moving even faster to regulate the technology. Since the beginning of the year, 10 state legislatures have introduced bills to regulate the use of facial recognition software, according to the Georgetown University Law School Center on Privacy and Technology.
In the state of Washington, the stakes around such regulation are further heightened. Legislation to regulate use of facial recognition in Washington can be particularly influential since the Seattle area is home to Amazon and Microsoft, two of the largest companies selling facial recognition software to governments. Axon, a maker of police body cameras and video cloud storage provider, is also located in Washington.
This week, lawmakers initiated a second attempt to pass the Washington State Privacy Act. Known as SB 6281, the bill would regulate data privacy law and require “meaningful human review” of facial recognition results when used by the private sector. In a press conference Monday, the bill’s chief sponsor, Senator Reuven Carlyle, said the state is moving forward because there isn’t time to wait for lawmakers in Washington, D.C. to deliver privacy regulation to reign in business use of private data. Carlyle said the bill takes cues from the CCPA in California and GDPR in Europe.
A different version of the Washington Privacy Act passed the Washington State Senate with a nearly unanimous vote in spring 2019 but died in the Washington State House of Representatives.
Lawmakers complained last spring that the legislative process was tainted by lobbying from tech companies like Microsoft and that companies like Amazon and Microsoft had played too great a role in drafting the 2019 version of the Washington Privacy Act.
Also introduced this week in Washington is SB 6280, a bill to regulate government use of facial recognition. The bill’s chief sponsor, State Senator Joe Nguyen, is a senior program manager at Microsoft, according to his LinkedIn profile. Nguyen is also a cosponsor of the Washington Privacy Act.
Microsoft initially supported the Washington Privacy Act last year, but the tech giant came to oppose amendments to the bill, calling them too restrictive. Microsoft also opposed a moratorium proposed by the ACLU, one of the first such moratoriums to be considered by any state legislature.
Jevan Hutson leads facial recognition and AI policy at the University of Washington School of Tech and Public Policy Clinic. He testified in multiple hearings in Olympia, Washington this week in favor of HB 2363, a bill that would make biometric data the sole property of an individual, and in opposition to the latest iteration of the Washington Privacy Act.
He also introduced a bill known as the AI Profiling Act. The legislation, which he drafted with others at the University of Washington, would outlaw the use of AI to profile people in public places; in important decision-making processes for a number of industries; and to predict a person’s religious affiliation, political affiliation, immigration status, or employability.
His position is that facial recognition may have some legitimate use cases, but it’s also a perfect surveillance tool. He maintains that its supporters are fundamentally working to create an invasive, surveillance capitalism-driven marketplace.
He believes that the permissive regulatory framework in both versions of the Washington Privacy Act — which reject the idea of a moratorium — is due to the outsized influence of technology companies in Washington State that stand to profit from the widespread deployment of facial recognition.
He views Microsoft’s involvement and lobbying in 2019, and again in 2020, as an effort to create an initial framework for facial recognition regulation that can serve as a model for other states and the federal government.
While speaking at Seattle University last year, Microsoft president Brad Smith said legislation passed in Washington could go on to shape facial recognition policy around the world.
As proponents of the bill lay the groundwork for a second attempt to get it passed, politicians and advocates like Hutson argue legislation should take into account the demonstrated harm facial recognition can do and reject the idea that widespread use of facial recognition is inevitable.
“I think legislators and advocates here are seriously concerned and recognize that we need to get out front,” he said. “I think that sort of gets to the question of ‘Why now?’ It’s so important that we act because things will be bought by governments, and businesses will begin to deploy these things if there is not a clear sign from regulators and legislators — both at the federal and local level — to say, ‘No, this is not a valid market given the dangers that it poses.'”
Hutson cites the need for immediate action to shut down the idea that stifling innovation, a common argument against regulation, is always a bad thing. Facial recognition is being used for payments and to arrest people accused of crimes in China, but it’s also being used to track or imprison ethnic minorities, a use case he says could also be considered “innovative.”
“Innovation in many ways is this sort of false religion, where … innovation in and of itself is [seen as] a perfect good, and it’s not,” he said. “This is innovation worth stifling. Like I don’t think we should be super innovative with nuclear weapons. We don’t need even more innovative forms of oppression to be legitimized and authorized by the state legislature.”
While these new laws are getting hammered out, stories of outrage around facial recognition continue.
In Denver, where the city council is considering a facial recognition ban, advocates of the regulation recently demonstrated that all nine members of the council could be matched to individuals on the local sex offender registry with 92% accuracy.
There’s also the story of Clearview AI, a startup that allows people to upload a person’s image and then find any other instances of that person’s image appearing on the web.
“It’s creepy what they’re doing, but there will be many more of these companies. Absent a very strong federal privacy bill, we’re all screwed,” Stanford University professor Albert Gidari told the New York Times.
In any case, this week’s steps to introduce legislation are just the beginning.
And as bills and regulations continue to percolate through state legislatures and the halls of Congress, stories fueling a collective sense of urgency are likely to continue.
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