BOSTON, Mass. (Oct 29, 2019) – Last Tuesday, a joint Massachusetts legislative committee held a hearing on two bills that would place a moratorium on the use of facial recognition technology by law enforcement in the state and impose strict guidelines on any legislation authorizing the use of such technology in the future. The proposed laws would not only help protect privacy in Massachusetts, but it would also hinder one aspect of the federal surveillance state.
Sen. Cynthia Stone Creem (D) introduced Senate Bill 1385 (S1385) in January. Rep. David Rogers (D-Middlesex) introduced House Bill 1538 (H1538) around the same time. Both bills would ban government agencies in Massachusetts, including law enforcement agencies, from acquiring, possessing, accessing, or using a facial recognition system without express statutory authorization passed by the state legislature. It would also prohibit government agencies from accessing information gathered by a facial recognition system operated by any other entity. Facial recognition technology would include technology that can recognize an individual by their gait, voice, or other immutable characteristic ascertained from a distance.
In effect, S1385 and H1538 would completely ban facial recognition technology in Massachusetts until the legislature passes a law guiding its use. The bills include guidelines the legislature would have to follow when drafting future laws authorizing the use of facial recognition to ensure rigorous protections for due process, privacy, free speech and association, and racial, gender, and religious equity.
Passage of either bill would take a first step toward permanently limiting the use of facial recognition technology.
On Oct. 22, the Joint Committee on the Judiciary held a hearing on the bills. The room was reportedly packed with supporters of the facial recognition moratorium.
Creem pointed out that the use of facial recognition is completely unregulated in the state and testified that putting checks and balances in place to guide the use of this invasive technology is crucial.
“Facial recognition technology is technology that allows you and large groups of people to be secretly surveiled, identified, and tracked. The government is using it without your consent.”
She went on to say that there is no law to keep facial recognition from being used to monitor political protesters or even children in public schools.
Kade Crockford serves as the director of the ACLU of Massachusetts’ Technology for Liberty Program and testified in support of the legislation. She pointed out problems with technology as it’s now being used and issued a stark warning.
“Technology companies are putting tremendous pressure on our local governments to adopt technologies that may make serious mistakes, particularly on women and people of color. No one is minding the house here. This technology poses a profound and unprecedented threat to civil rights and civil liberties. In places like China, governments are already using this technology to conduct mass surveillance, tracking every person’s public movements.”
Law enforcement will push back hard against the moratorium and it will take a concerted effort to move this legislation forward.
IMPACT ON FEDERAL PROGRAMS
A recent report revealed that the federal government has turned state drivers’ license photos into a giant facial recognition database, putting virtually every driver in America in a perpetual electronic police lineup. The revelations generated widespread outrage, but this story isn’t new. The federal government has been developing a massive, nationwide facial recognition system for years.
The FBI rolled out a nationwide facial-recognition program in the fall of 2014, with the goal of building a giant biometric database with pictures provided by the states and corporate friends.
In 2016, the Center on Privacy and Technology at Georgetown Law released “The Perpetual Lineup,” a massive report on law enforcement use of facial recognition technology in the U.S. You can read the complete report at perpetuallineup.org. The organization conducted a year-long investigation and collected more than 15,000 pages of documents through more than 100 public records requests. The report paints a disturbing picture of intense cooperation between the federal government, and state and local law enforcement to develop a massive facial recognition database.
“Face recognition is a powerful technology that requires strict oversight. But those controls, by and large, don’t exist today,” report co-author Clare Garvie said. “With only a few exceptions, there are no laws governing police use of the technology, no standards ensuring its accuracy, and no systems checking for bias. It’s a wild west.”
There are many technical and legal problems with facial recognition, including significant concerns about the accuracy of the technology, particularly when reading the facial features of minority populations. During a test run by the ACLU of Northern California, facial recognition misidentified 26 members of the California legislature as people in a database of arrest photos.
With facial recognition technology, police and other government officials have the capability to track individuals in real-time. These systems allow law enforcement agents to use video cameras and continually scan everybody who walks by. According to the report, several major police departments have expressed an interest in this type of real-time tracking. Documents revealed agencies in at least five major cities, including Los Angeles, either claimed to run real-time face recognition off of street cameras, bought technology with the capability, or expressed written interest in buying it.
In all likelihood, the federal government heavily involves itself in helping state and local agencies obtain this technology. The feds provide grant money to local law enforcement agencies for a vast array of surveillance gear, including ALPRs, stingray devices and drones. The federal government essentially encourages and funds a giant nationwide surveillance net and then taps into the information via fusion centers and the Information Sharing Environment (ISE).
Fusion centers were sold as a tool to combat terrorism, but that is not how they are being used. The ACLU pointed to a bipartisan congressional report to demonstrate the true nature of government fusion centers: “They haven’t contributed anything meaningful to counterterrorism efforts. Instead, they have largely served as police surveillance and information sharing nodes for law enforcement efforts targeting the frequent subjects of police attention: Black and brown people, immigrants, dissidents, and the poor.”
Fusion centers operate within the broader ISE. According to its website, the ISE “provides analysts, operators, and investigators with information needed to enhance national security. These analysts, operators, and investigators…have mission needs to collaborate and share information with each other and with private sector partners and our foreign allies.” In other words, ISE serves as a conduit for the sharing of information gathered without a warrant. Known ISE partners include the Office of Director of National Intelligence which oversees 17 federal agencies and organizations, including the NSA. ISE utilizes these partnerships to collect and share data on the millions of unwitting people they track.
In a nutshell, without state and local cooperation, the feds have a much more difficult time gathering information. Banning or at least limiting facial recognition eliminates one avenue for gathering facial recognition data. Simply put, data that doesn’t exist cannot be entered into federal databases.
WHAT’S NEXT
The Joint Judiciary will have to pass H1538 or S1385 before either bill can move forward in the legislative process. Joint committees in the Massachusetts legislature often draft new bills pulling elements of similar bills together.
