HELENA, Mont. (March 6, 2023) – Last week, the Montana Senate overwhelmingly passed a bill that would limit facial recognition surveillance in the state. The proposed law would not only help protect privacy in Montana; it could also hinder one aspect of the federal surveillance state.
Sen. Kenneth Bogner (R) introduced Senate Bill 397 (SB397) on Feb. 17. The legislation would ban warrantless facial recognition surveillance in Montana in most situations and would place general limits on the use of facial recognition technology by government agencies.
SB397 includes an outright ban on “continuous facial surveillance” defined as “the generalized monitoring of public places or third party image sets using facial recognition technology for facial identification to match faces with a prepopulated list of face images. The term includes but is not limited to scanning stored video footage to identify faces in the stored data, real-time scanning of video surveillance to identify faces passing by the cameras, and passively monitoring video footage using facial recognition technology for general surveillance purposes without a particularized suspicion of a specific target.”
Under the proposed law, a state or local government agency, including a Montana law enforcement agency, would be generally prohibited from:
(a) obtaining, retaining, possessing, accessing, requesting, or using facial recognition technology or information derived from a search using facial recognition technology;
(b) entering into an agreement with a third-party vendor for any purpose listed in subsection (1)(a); or
(c) installing or equipping a continuous facial surveillance monitoring camera on public buildings or on public roads and highways of this state
SB397 would limit law enforcement use of facial recognition technology to the state Department of Justice. Other state and local agencies could request a search by that department using facial recognition technology if there is probable cause to believe that an unidentified individual in an image has committed, is a victim of, or is a witness to a serious crime; to local missing persons; or to identify somebody who has died.
A “serious crime” is defined by specific state statutes.
Law enforcement agencies would have to get a warrant before requesting a facial recognition search to investigate a serious crime unless there is an emergency posing an imminent threat to a person.
Law enforcement agencies would be prohibited from using the results of facial recognition technology as the sole basis to establish probable cause in a criminal investigation. They would not be able to use facial recognition to identify a person based on a sketch, and all facial recognition identifications would be subject to “meaningful human review.”
SB397 includes limits on third parties supplying facial recognition technology to state government agencies, as well as robust reporting requirements when facial recognition is used as permitted under the law.
On March 2, the Senate passed SB397 by a 44-6 vote.
IMPACT ON FEDERAL PROGRAMS
A 2019 report revealed that the federal government has turned state driver’s 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 the story wasn’t new. The federal government has been developing a massive 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.”
Despite the outrage generated by these reports, Congress has done nothing to roll back this facial recognition program.
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.
Reports that the Berkeley Police Department in cooperation with a federal fusion center deployed cameras equipped to surveil a “free speech” rally and Antifa counterprotests provided the first solid link between the federal government and local authorities in facial recognition surveillance.
In a nutshell, without state and local cooperation, the feds have a much more difficult time gathering information. The passage of state laws and local ordinances banning and limiting facial recognition eliminates one avenue for gathering facial recognition data. Simply put, data that doesn’t exist cannot be entered into federal databases.
SB397 will now move to the House for further consideration. At the time of this report, it had not been referred to a House committee. Once it receives a committee assignment, it must get a hearing and pass by a majority vote before moving forward in the legislative process.
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