Lawmakers propose indefinite nationwide ban on police use of facial recognition

The proposed law would prevent police, both federal and local, from using facial recognition until Congress passes a bill lifting the ban.

Alfred Ng Senior Reporter / CNET News
Alfred Ng was a senior reporter for CNET News. He was raised in Brooklyn and previously worked on the New York Daily News's social media and breaking news teams.
Alfred Ng
5 min read

Lawmakers are proposing a nationwide moratorium on facial recognition, putting an indefinite pause on the technology for law enforcement use.

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A group of lawmakers have proposed legislation that would impose a federal moratorium on the use of facial recognition technology by law enforcement, the first effort to temporarily ban the technology nationwide.

On Thursday, Sen. Ed Markey and Sen. Jeff Merkley proposed the Facial Recognition and Biometric Technology Moratorium Act, which calls for a full stop to facial recognition use by the government. In the House of Representatives, the bill is backed by Rep. Ayanna Pressley, a Massachusetts Democrat, and Rep. Pramila Jayapal, a Democrat from Washington state.

The bill seeks to place a moratorium on the use of facial recognition until Congress passes a law to lift the temporary ban. It would apply to federal agencies such as the FBI, as well as local and state police departments. Any local police departments using facial recognition while the moratorium is in place wouldn't be able to receive federal grants, according to the legislation.

It would also extend to any biometrics surveillance system beyond facial recognition, including voice recognition. The American Civil Liberties Union found on June 17 that Microsoft tried to sell voice recognition software to the Drug Enforcement Agency from September 2017 to December 2018.

"Facial recognition technology doesn't just pose a grave threat to our privacy, it physically endangers Black Americans and other minority populations in our country," Markey, a Democrat from Massachusetts, said in a statement. "As we work to dismantle the systematic racism that permeates every part of our society, we can't ignore the harms that these technologies present."

The bill also comes as the United Nations Human Rights Council is calling for a moratorium on facial recognition being used on protesters. The organization released a report Thursday pointing out that the technology could amplify discrimination against people of color, and also deter people from exercising their free speech rights. 

"As people gather worldwide to protest against racism, including by law enforcement officials, the right to peaceful assembly has never been more important," said the UN's commissioner for human rights, Michelle Bachelet. "Facial recognition should not be deployed in the context of peaceful protests without essential safeguards regarding transparency, data protection and oversight in place."

Members of Congress have introduced several bills that tackle facial recognition in different ways, including a ban in public housing and requiring consent from businesses that use the technology. No federal laws on facial recognition have passed, leaving state and local officials to pass their own regulations on the technology.

Watch this: Facial recognition is going to be everywhere

The proposed federal moratorium comes after cities such as San Francisco and Boston, citing privacy concerns and racial bias with the technology, have passed their own bans on facial recognition. A nationwide call for police reform following the May 25 killing of George Floyd by police has prompted both lawmakers and tech companies to take action on facial recognition. 

Since that call for reform, the proposed law is the first legislation introduced that would prevent all law enforcement in the US from using facial recognition. The Justice in Policing Act addressed facial recognition, but only its use with body cameras.

"Between the risks of sliding into a surveillance state we can't escape from, and the dangers of perpetuating discrimination, this technology is not ready for prime time," said Merkley, a Democrat from Oregon. "The federal government must ban facial recognition until we have confidence that it doesn't exacerbate racism and violate the privacy of American citizens."

Several police departments across the US use facial recognition for surveillance and investigations, even after researchers have identified serious flaws with the software's ability to match people of color and women. Researchers Joy Buolamwini and Timnit Gebru highlighted how much worse facial recognition was for Black women compared with detection capabilities for white men, sparking calls for law enforcement agencies to stop using the technology. 

"Facial recognition is the perfect technology for tyranny. It automates discriminatory policing and exacerbates existing injustices in our deeply racist criminal justice system," Evan Greer, deputy director for the digital rights group Fight for the Future, said in a statement. "This legislation effectively bans law enforcement use of facial recognition in the United States. That's exactly what we need right now. We give this bill our full endorsement."

Two years after Buolamwini and Gebru's research was published, Amazon, Microsoft and IBM all announced they would back out of the facial recognition market, with Amazon implementing a one-year moratorium on selling the technology to police. 

All three have called for Congress to take legislative action on facial recognition, offering their help with potential regulations on the facial recognition industry. 

Security cameras with facial recognition tech inside

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Lawmakers have been skeptical of the tech industry's call for regulations, noting that Amazon's one-year moratorium doesn't provide enough time to pass effective legislation on the technology. Members of Congress have noted that facial recognition is embedded in a lot of technology, including doorbells and iPhones, and that a full ban of the tool wouldn't be feasible. 

The legislation introduced on Thursday goes beyond what other regulations on facial recognition has proposed with a full ban for law enforcement use.

"Unlike other proposed congressional bills that have considered regulation, warrant requirements or formal commissions to chart a path forward, this law would simply prohibit funding for future development," said Andrew Guthrie Ferguson, author of The Rise of Big Data Policing and a law professor at the University of the District of Columbia. "Congress appears to have learned from the successes of facial recognition bans in Boston and San Francisco to see that a national facial recognition ban has widespread political appeal."

The racial bias in facial recognition has led to serious consequences for innocent people. The ACLU found that police in Detroit wrongfully arrested Robert Williams, a Black man, after the city's facial recognition software mistakenly identified him as a thief behind a break-in. 

"No one should have to go through what the Williams family has gone through," said Neema Singh Guliani, senior legislative counsel with the ACLU. "It's past time Congress halted the use of face recognition and stopped federal money from being used to invest in invasive and discriminatory surveillance."

The New York City Police Department has also used flawed data for its facial recognition, researchers from the Georgetown Law Center on Privacy and Technology found in NYPD documents in May 2019. Investigators would use look-alikes or would digitally edit images to have them work better with its facial recognition, arresting people based on the results. 

These concerns have pushed lawmakers to consider how a facial recognition moratorium would work. Rep. Jimmy Gomez, a Democrat from California, has been looking into a bill that would impose a moratorium on facial recognition for at least two years, starting from January 2021. 

Merkley proposed the Ethical Use of Facial Recognition Act in February, which would put a moratorium on government use of facial recognition until a commission recommended appropriate safeguards for the technology. 

The bill introduced on Thursday takes it a step further by specifying the moratorium on police use of facial recognition, including local and state law enforcement.
"Black and brown people are already oversurveilled and overpoliced, and it's critical that we prevent government agencies from using this faulty technology to surveil communities of color even further," Pressley said.