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Facial recognition's fate could be decided in 2021

A number of lawsuits and legislative measures mean the debate over the use of facial recognition is poised to ramp up.

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Facial recognition is being challenged by lawmakers and in courtrooms.

Malte Mueller/Getty Images

The dumpster fire that was 2020 has also set the stage for what could be the biggest development in facial recognition and how it gets regulated. In the past year, lawmakers, privacy advocates, lawsuits and local legislative measures have all rallied against the technology as a tool for surveillance and law enforcement. Several crucial decisions in the next year will steer its future. 

At stake is the role facial recognition will play as society weighs the importance of security over civil liberties. Though millions of consumers use the technology every day through the Face ID feature on their iPhones, opponents worry that the public use of facial recognition is an invasion of your personal privacy. Others warn that the algorithms are flawed, often showing bias against women and minorities. 2020 saw its share of headlines on the topic. 

The year kicked off with investigations by The New York Times and BuzzFeed News of Clearview AI, a controversial facial recognition startup that's harvested billions of photos of people without their permission from social networks. 

By March, the coronavirus pandemic made face masks an essential item, which upended hundreds of facial recognition detection algorithms overnight. 

During the summer, tech companies like IBM and Microsoft announced that they wouldn't be providing facial recognition to law enforcement agencies. Though Microsoft never provided facial recognition to local police departments, the company has tried selling its tools to federal law enforcement like the Drug Enforcement Agency. Amazon, which provides Rekognition to police departments, opted to pause its services to law enforcement agencies for one year.   

Amazon hasn't given any details on what'll happen by June 2021, but local and federal policies and lawsuits decided in the next year will lay out where facial recognition heads. That's why those same companies have aggressively lobbied Congress on technology issues including facial recognition, in the hope of helping determine the rules they'll have to abide by.

And it's why Amazon spent $24,000 in Portland, Oregon, in attempts to kill the strongest facial recognition ban in the US, and why Microsoft played a heavy role in Washington state's facial recognition law, which its own employee wrote.  

Face the states

In 2019, San Francisco was the first city to ban government use of facial recognition. Since then, a deluge of cities have followed suit, using San Francisco's regulation as a model for their own local legislation

In 2020 alone, facial recognition bans popped up in cities including Jackson, Mississippi; Portland, Oregon, and Portland, Maine; and Boston, Cambridge and Springfield, Massachusetts. In December, Massachusetts lawmakers voted to make their state the first to completely ban police use of facial recognition

Not all the attempts to prohibit facial recognition have been successful. Despite protests against the technology and known cases of police making false arrests because of facial recognition's racial bias, Detroit's city council voted to renew its facial recognition contract. 

"Today's vote doubles down on faulty, racist technology that has already ruined lives," Michigan Rep. Rashida Tlaib said in a statement in September. "So we must double down on our own commitment to banning facial recognition in Detroit and working towards real safety in all of our communities. I am committed to continuing the effort to ban facial recognition technology on the federal level -- we cannot ignore the facts and we cannot ignore what residents are demanding."

Federal recognition

Tlaib is supporting a federal facial recognition ban in a bill backed by lawmakers including Sens. Bernie Sanders, Ron Wyden and Elizabeth Warren

Sens. Ed Markey and Jeff Merkley introduced the bill in June, which would indefinitely ban facial recognition for law enforcement agencies nationwide. The only way the moratorium would stop is if Congress passed a bill lifting the ban. 

"There's no question that across the country, the American people see the serious harms that facial recognition technology presents," Markey said in a statement to CNET. "They recognize that the growth of facial recognition surveillance poses a serious threat to our privacy and civil liberties, and it also disproportionately endangers Black and Brown Americans. We need to be rooting out forces of racial injustice and invasive surveillance in our society, and that's what this legislation is all about."

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With the bipartisan support for facial recognition regulations and the incoming Biden administration's promise of police reform, the bill has momentum going into 2021, but there's concern that tech lobbyists will cause weaker restrictions to be put in place.

"While there is a growing bipartisan consensus against these technologies, the political will is likely not yet powerful enough to overcome Big Tech lobbying," said Albert Fox Cahn, the executive director of the Surveillance Technology Oversight Project. "Tech giants are spending tens of millions of dollars to stave off real reforms and -- even worse -- push legislation that would repeal local facial recognition bans."

Some in the tech industry have taken notice of that concern, with letters from IBM CEO Arvind Krishna and Microsoft President Brad Smith both urging President-elect Biden to take action on facial recognition regulations. 

"IBM stands ready to work with you on measures to prohibit the use or export of facial recognition for mass surveillance, racial profiling or violations of basic human rights and freedoms," Krishna wrote in his letter on Nov. 9. 

When reached for comment, IBM pointed to a letter from June in which it called for an end to facial recognition being used for mass surveillance. The company declined to comment on Markey's proposed legislation. 

Privacy advocates are skeptical of tech companies looking to write the rules on facial recognition, raising concerns that any regulations those companies influence will likely mean weaker protections from the technology.

Track record

The track record of corporate influence on local facial recognition laws is proof those concerns are justified, activists said. After Washington state passed its facial recognition law drafted by State Sen. Joe Nguyen, who's also a program manager at Microsoft, lawmakers introduced bills with similar language in states like California, Maryland, South Dakota and Idaho, according to The Wall Street Journal

The report noted that Microsoft has been promoting the legislation in these states, while privacy advocates argue that the proposed laws don't actually protect people from facial recognition. Instead, they look to regulate and create accountability reports on facial recognition usage rather than outright banning the technology. 

"We believe government needs to regulate whether and how facial recognition is used to ensure people are protected under the law," Microsoft said in a statement. "It's critical that any new laws are grounded in human rights protections like privacy, freedom of expression, and freedom of association -- and contain strong safeguards like third-party testing, notice and consent, meaningful human review, and limits against mass surveillance."

In 2019, Amazon CEO Jeff Bezos said his company has been working on its own facial recognition regulations to present to Congress. When reached for comment, Amazon pointed to a February 2019 blog post on its facial recognition legislation and declined to offer any other information on the record.

There's a growing worry that if tech companies can influence a federal facial recognition bill in 2021, the bill would set a weak national standard that could also potentially undo stronger bans passed in several cities. That would be similar to what tech giants want for federal data privacy regulations, with calls for a national bill to overrule state laws already established.  

"They are calling for regulation of facial recognition because they know their lawyers and lobbyists will have tremendous influence over what that legislation looks like," said Evan Greer, deputy director of the digital rights group Fight for the Future. "Any lawmaker who is serious about protecting the public should support an outright ban on law enforcement use of facial recognition."

Legal challenges 

Several lawsuits filed in 2020 that could see resolution next year may also have an impact on facial recognition. 

Clearview AI is facing multiple lawsuits about its data collection. The company collected billions of public images from social networks including YouTube, Facebook and Twitter. All of those companies have sent a cease-and-desist letter to Clearview AI, but the company maintains that it has a First Amendment right to take these images.  

That argument is being challenged by Vermont's attorney general, the American Civil Liberties Union and two lawsuits in Illinois. Clearview AI didn't respond to requests for comment.

The Clearview decision could play a role in facial recognition's future. The industry relies on hordes of images of people, which it gets in many ways. An NBC News report in 2019 called it a "dirty little secret" that millions of photos online have been getting collected without people's permission to train facial recognition algorithms. 

"We're likely to also see growing amounts of litigation against schools, businesses and other public accommodations under a new wave of biometric privacy laws, including New York City's forthcoming ban on commercial biometric surveillance," said the Surveillance Technology Oversight Project's Cahn.

Another lawsuit, in New York, is hoping to keep facial recognition out of schools. Educators have paid millions of dollars for facial recognition tech to protect against school shootings, even as the technology's providers admit it likely wouldn't help

In June, the New York Civil Liberties Union sued the state's Education Department, arguing that a school district's $3 million facial recognition system violated privacy protections under New York's Education Law. Documents from the lawsuit obtained by Motherboard found that the school's facial recognition software misidentified Black students and made mistakes such as considering broom handles to be guns. 

The NYCLU also backed the passage of a New York bill that would temporarily ban facial recognition in schools, which Gov. Andrew Cuomo still needs to sign. 

"Whether in Albany or in court, we hope to see a successful resolution of this issue in 2021 and bring an end to this biased and harmful form of school surveillance that endangers young students and people of color," said the deputy director of the NYCLU's Education Policy Center, Stefanie Coyle. 

Facial recognition's future in police departments, schools and stores could be decided in the next year. For privacy advocates, 2021 represents an opportunity to put out a dumpster fire. And for the facial recognition industry, it's an opportunity to regulate how and when dumpster fires can be put to use.