Congress: 'It's time for a time out' on facial recognition

Members of Congress, both Democrats and Republicans, are expressing alarm over the misuse of facial recognition technologies.
Written by Stephanie Condon, Senior Writer

The potential use of real-time facial recognition technology, paired with the tens of millions of surveillance cameras that already exist in the US, amounts to a "1984 George Orwell scenario that I think troubles us all," Republican Rep. Jim Jordan of Ohio warned at a congressional hearing Wednesday. 

Jordan and other members of the House Oversight Committee heard from experts on the technology and advocates for its regulation. While Jordan is the top Republican on the committee, his alarm was echoed by effectively all the members of the committee, Democrat and Republican.

"I think it's time for a time out," Jordan said with respect to the technology's use.  

Committee Chairman Elijah Cummings, a Democrat from Maryland, expressed optimism that Congress "can get something done in a bipartisan way." He noted that the committee will continue to explore the issue with further hearings that dive deep into specific matters like state and local issues, the specific use of facial recognition by law enforcement and its use within the private sector. Cummings said Congress should come up with "sensible" recommendations -- "legislative or otherwise" -- to ensure facial recognition technology doesn't infringe on individuals' rights.

"The question is, do you have an all-out moratorium," Cummings said.

The hearing comes as citizens grow increasingly concerned about the ways new technologies -- including facial recognition -- may imperil civil liberties. Earlier this month, San Francisco became the first city to ban local government agencies -- including police -- from using facial recognition.

At the same time, other cities like Chicago and Detroit are moving in the other direction. Law enforcement agencies in various places around the US are using facial recognition technology with effectively no rules. 

Also: Report slams police for using "garbage" data with facial recognition tools

The technology is being embraced at the federal level as well. For instance, the Secret Service is piloting a a real-time facial recognition surveillance program around the White House grounds, according to Clare Garvie of the Georgetown University Law Center, Center on Privacy & Technology.

The most obvious place for congressional oversight to start would be the use of facial recognition by federal law enforcement agencies. Jordan expressed outrage that the FBI has had access to the images in driver's license databases from as many as 18 states.

"Some unelected person at the FBI talks to some unelected person at the state level, and they say go ahead," he said -- without giving any notification to individuals or elected representatives that their images will be used by the FBI.

Jordan said there should at least be limitations on which other federal agencies the FBI could share such information with, expressing concern that the IRS could use the data acquired by the FBI.

Cummings noted that as far back as 2016, the Government Accountability Office (GAO) issued a report recommending the FBI make numerous changes to its use of facial recognition technology. Yet just last month, the GAO noted that the FBI failed to implement six of its recommendations.

Members of the committee weren't just blaming the FBI and other government agencies for misuse of the technology -- they expressly called out companies like Amazon and Facebook for the ways they develop and market facial recognition. Democratic Rep. Rashida Tlaib of Michigan slammed "for-profit companies pushing so-called technology that has never been tested" on communities like her constituents in Detroit, which has paid for the capability to implement real-time facial recognition surveillance.

Democratic Rep. Jimmy Gomez of California said that in the past year, his office has met with representatives from Amazon nine times. Yet "my concerns only grow, day by day," he said.

Members of Congress also heard testimony from experts like Joy Buolamwini, founder of the Algorithmic Justice League, who noted that Facebook has filed a patent for technology that could use facial recognition to provide businesses such as retailers with a "trustworthiness score" of their own customers.

"As we're talking about state surveillance, we absolutely have to think about corporate surveillance as well," Buolamwini said.

She said that regulations such as Europe's GDPR can stop companies like Facebook from harvesting biometric data without users' consent.

Buolamwini and the other experts before Congress on Wednesday discussed a range of other steps Congress could take, aside from an "all-out moratorium."

For instance, they could at least require all federal agencies and organizations using federal funding to disclose when they are using face-based technologies. Most state and local surveillance programs are funded with federal grant dollars, the witnesses noted.

Setting standards for law enforcement use of the technology would benefit police officers themselves, said Cedric Alexander, former president of the National Organization of Black Law Enforcement Executives.

"If I'm not properly trained, if I'm not supervised, if there's no transparency... and then something goes awry, then I -- the end user, the police chief -- end up being the bad guy," he said.

For investigative purposes, Congress should enact a "probable cause-plus" standard, suggested Prof. Andrew Ferguson from the David A. Clarke School of Law at the University of the District of Columbia. That would require an assertion of probable cause in a sworn affidavit, plus declarations that care was taken to minimize unintended collection of other face images, and that proper steps have been taken to document and memorialize the collection. 

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