Advocates for privacy rights, civil liberties and racial justice are preparing to press the next Congress and the Biden administration to impose stricter regulations on the use of facial recognition tools and other types of biometric surveillance technology.
Amid a national debate over policing and systemic racism, groups such as the nonprofit Center for Democracy and Technology plan to push lawmakers from both parties as well as President-elect Joe Biden to regulate a technology that experts say poses a disparate threat to communities of color, especially in the hands of law enforcement.
“President-elect Biden has made a commitment to address disparities in the criminal justice system, and that should extend to some of the technological causes of disparity, like facial recognition, that has a disproportionately negative impact on African Americans,” Greg Nojeim, a senior counsel at CDT and director of its Freedom, Security and Technology Project, told CQ Roll Call.
In a letter last month to the Biden transition team, CDT joined 29 other organizations in urging federal agency review teams to “prioritize civil rights and technology equities” when recruiting personnel for the new administration. Federal departments should hire dedicated technology and civil rights staff to consider how new regulations would affect vulnerable and underrepresented populations, the letter said.
“With better understanding of civil rights and technology and a clear directive to address these issues, agencies can create a regulatory environment that encourages companies to design tools with equity impacts in mind,” the groups said. “Without a diverse range of expertise focusing on tech policy, the new administration will not achieve the equitable outcomes it seeks.”
Facial recognition software has emerged as the most high-profile technology to rattle privacy advocates, and regulation has begun at the local level in places such as San Francisco and Boston, which have banned its use. In the wake of protests against police violence after the killing of George Floyd last May in Minneapolis, activists linked the debate over facial recognition to the greater struggle for racial justice.
That intertwining means that Biden is likely to pay attention to the role of technology in the criminal justice system, Nojeim predicted.
“There’s discrimination throughout the criminal justice process — surveillance at the beginning, and sentencing at the end — where technology is helping to make decisions,” he said. “I can see President-elect Biden being sensitive to those issues and making sure that his decisions about technology policy reflect those concerns.”
Still, advocates aren’t taking anything for granted. Evan Greer, deputy director for the digital rights group Fight for the Future, another signatory on the letter to Biden’s transition team, says her organization is ready to organize anti-surveillance protests similar to those that Fight for the Future has undertaken on issues like net neutrality.
“I don’t assume there’s anyone that Biden could appoint who’s going to magically do all the things that we want them to do, especially on surveillance, which has long been an issue where politicians only do what we make them do,” Greer said.
Greer acknowledges a difficult road ahead in the struggle against facial recognition tools, especially in Congress. In the decades since 9/11, lawmakers have been largely supportive of surveillance technology and only recently have begun to question its efficacy or fairness.
“I’m optimistic that we could see more productive action from lawmakers,” she said. “But even if we don’t, there are things the administration could do to slow down or put basic limits on the spread of some of the worst types of surveillance technology.”
For instance, Biden’s choice to lead the Education Department could restrict the use of facial recognition systems in schools, and his nominee for Housing and Urban Development secretary could do the same for public housing. Congressional and state Democrats have floated both ideas, and executive action from Biden could give a boost to advocates seeking to build greater support on Capitol Hill.
“There are plenty of ways that they can and should be outspoken about reining in surveillance programs, surveillance authorities and surveillance technology,” Greer said. “That then gives us time to continue mobilizing and organizing and building toward a political situation where lawmakers act on something like a federal moratorium on facial recognition.”
Calls for a federal moratorium on the use of facial recognition as well as an outright ban grew louder this year, especially among liberal Democrats. In February, Sens. Jeff Merkley of Oregon and Cory Booker of New Jersey introduced legislation banning federal use of the technology until Congress passes a bill outlining specific instances in which it could be used.
In June, Merkley and Sen. Edward J. Markey, D-Mass. — along with Reps. Ayanna S. Pressley, D-Mass., and Pramila Jayapal, D-Wash. — introduced legislation in both chambers to ban federal use of facial recognition and limit use of other biometric surveillance, such as voice recognition. The bill’s supporters invoked the case of Robert Williams, a Detroit-area man arrested for robbery after being misidentified by facial recognition.
“Facial recognition technology is fundamentally flawed, systemically biased, and has no place in our society,” Pressley said in a statement. “Black and brown people are already over-surveilled and over-policed, and it’s critical that we prevent government agencies from using this faulty technology to surveil communities of color even further.”
Industry might welcome some regulation
Despite pushback from some facial recognition software manufacturers, Biden would enjoy some backing from the industry should he choose to pursue regulation of the technology. After last month’s election, the chief executives of Microsoft and IBM offered their support for federal guidelines on how it should be used.
“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 freedom,” Arvind Krishna, IBM’s chief executive, wrote in a letter to Biden.
Groups that support the use of facial recognition tools, on the other hand, say the technology is crucial for American control of artificial intelligence innovation. The Security Industry Association, which includes members that manufacture facial recognition tools, supports continued use of the technology by law enforcement agencies but backs measures that would increase transparency.
“There’s a U.S. leadership role in making sure that AI is used in beneficial ways,” Jake Parker, the group’s senior director of government relations, told WIRED last month.
Advocates say they’re prepared to go toe-to-toe with private companies.
“Intelligence agencies and technology companies that are able to raise the specter of national security concerns and safety are powerful forces in Washington,” Greer said. “Regardless of which party is in the White House, we always have a steep hill to climb, to continue building momentum to get policies in place that really protect people.”