SALT LAKE CITY — The Chinese government is using it as a racial profiling tool in its crackdown on — and detention of — ethnic Muslims.
At least two U.S. cities have the capability of using it in conjunction with networks of publicly installed surveillance cameras.
Utah authorities have allowed it to be used, without judicial warrants, to conduct dragnet scans of a database that holds the photos of some 2.5 million residents, including minors.
And four cities in the U.S. have moved to ban its use outright, with numerous others considering similar actions.
Now, Utah lawmakers at the state and federal levels are working to catch up with the emerging technology and hope to create guardrails to protect citizens from the misuse of facial recognition software — a fast-evolving innovation that can map an individual’s face and search for matches at lightning fast speeds among vast troves of stored photos and video footage.
At the moment, there is a dearth of statutory restrictions on how, when and where facial recognition technology should be used as legislation has lagged behind the technological evolution.
Last month, Sen. Mike Lee, R-Utah, along with Sen. Chris Coons, D-Del., introduced a bill that would require federal law enforcement to obtain a warrant based on probable cause to use facial recognition technology for ongoing surveillance of a person. It also limits surveillance to 30 days and sets rules to minimize the collection of data on people who fall outside the scope of the warrant.
Lee, who has also demanded a halt to use of the technology by the Department of Homeland Security and U.S. Customs Immigration to monitor international travelers, including U.S. citizens, told the Deseret News he’s working to create appropriate limitations on a tool that’s being used in a manner that’s “very intrusive, very Big Brother-ish.”
“Our objective with this bill, the Facial Recognition Technology Warrant Act, is to put in place some safeguards to protect American people from inappropriate government surveillance,” Lee said. “The nub of our concern relates to what we’re referring to as targeted, ongoing public surveillance using facial recognition technology.
“What we’re trying to do is lay down some bright-line rules, specific to targeting an individual and monitoring that individual for more than a transitory period of time.”
Lee said the manner in which Chinese authorities are reportedly using facial recognition to identify and track Muslim minorities in a western province of the country is a “cautionary tale.” A recent anlaysis from the International Consortium of Investigative Journalists detailed strategies in use by the Chineses government to identify and track Muslim Uighurs and other minorities with a system that “is able to amass vast amounts of intimate personal data through warrantless manual searches, facial recognition cameras and other means to identify candidates for detention.”
Lee, who has visited the region, described the situation as a “somber reality” brought about by a “brooding surveillance state.”
In a reality much closer to home, concerns over the use of facial recognition scans of Utah databases have helped fuel efforts to construct some some state-level curbs on deployment of the new technology.
A report by Georgetown Law released in July drew attention to how Utah, among a small group of other states, was allowing warrantless access to a database that holds Utah driver’s license photos as well as a trove of other images, including some booking photos submitted by law enforcement agencies. The database contains some 2.5 million photos, including those of residents under age 18.
Since the Statewide Information and Analysis Center started keeping track in 2015 of who has been accessing the database for facial recognition scans, Utah has run nearly 3,284 searches for federal agencies, 357 for out-of-state police departments and 263 for local law enforcement. Over that time, federal matches were 5.6%, out-of-state 4.2% and local 19%.
Following release of the Georgetown report, the American Civil Liberties Union of Utah called for a legislative response to protect the privacy rights of Utahns whose photos are being scanned by law enforcers.
“Without knowledge or consent, everyone with a Utah driver’s license or driving privilege card may have had their photo analyzed thousands of times by facial recognition software that is known to be inaccurate,” Marina Lowe, legislative and policy counsel for ACLU of Utah, said in a statement. “These reports confirm that a massive, hidden surveillance infrastructure isn’t just science fiction, it’s already happening.
“We plan to investigate how this breach of trust occurred and the steps Utah lawmakers need to take to protect the privacy of all Utahns from this widespread, open-ended surveillance program.”
An attempt to codify some restrictions on the use of facial recognition tools in Utah had a hearing before a state legislative interim committee late last month, but came up short as both lawmakers and local civil rights advocates deemed the effort didn’t go far enough to protect Utahns.
The proposal from Sen. Daniel Thatcher, R-West Valley City, sought to place limits on certain law enforcement uses of the new, computer-based facial recognition technologies while also requiring public disclosures by state agencies already using it. Thatcher noted the effort would codify a number of practices already in place, but would also serve as a first step in filling a current legislative void in which the use of facial recognition software is not addressed or regulated.
The Government Operations Interim Committee adjourned without taking a vote on the measure and Thatcher told the Deseret News last week that he has no plans to try to revive the effort in the 2020 session and does not believe any other members of his caucus will pick up the effort.
Connor Boyack, president of Utah-based libertarian think tank Libertas Institute, said he fully expects the issue to be taken up again by the Legislature and that his organization will continue to work with lawmakers to assemble a proposal that addresses privacy protections. He also noted that the use of facial recognition software by the state’s driver license division to prevent identity fraud, a practice that’s been in place for nearly a decade, was appropriate while opening the database up to scanning by other agencies was a breach of public trust.
“We’re OK with allowing the government to use driver license photos to detect if there is any fraud within people’s driver license applications,” Boyack said. “It is inappropriate to use driver license photos to investigate every crime on the books, which is clearly not appropriate.”
Lowe said that while judicial rulings on the issue could also help bolster protections, waiting for the court system to establish appropriate limits on how new technology is deployed is a protracted and sometimes arduous process and one that underscores how important it is for lawmakers to take action to protect privacy rights.
“It takes a long time for cases to make their way through the court system and get in front of a judge for a ruling about how the Fourth Amendment should be considered,” Lowe said. “That process is slow and cumbersome, so legislation is a great place for states and the federal government to affirmatively stake out where individuals need the protection of our Constitution.”
Lowe said one of the most important first steps to curbing the misuse of facial recognition technology by law enforcement and/or government agencies is establishing the requirement of judicial authorization.
“Warrants are the biggest thing from the ACLU’s perspective and that’s where we would start,” Lowe said. “Something to require law enforcement to show that they have probable cause, to prevent fishing expeditions. That’s probably the most significant guardrail.”
Some U.S cities have made even bigger leaps in an effort to reign in the use of facial recognition systems, with San Francisco, Oakland, Berkeley, California, and Somerville, Massachusetts, all having instituted municipal bans on the government use of facial recognition tools. Conversely, Chicago and Detroit are reported to have contracts with a private service provider that could allow law enforcement agencies in both cities to apply facial recognition tools to networks of public surveillance cameras, though both cities have issued statements indicating they have not used the tools for that purpose.
To be clear, there are numerous, more benign uses of the technology that include biometric identification for banking and financial transactions, security entrances and travel. Retailers and the hospitality industry are working to incorporate facial recognition into customer loyalty programs and some believe the technology could help enhance school security systems.
Lee noted other great advancements in technology, like telephones coming into wide use in the early 20th century, were accompanied by lags in regulating government use of those tools (aka, wiretapping). He noted his current proposal is limited in scope but characterized it as an important first step in ensuring facial recognition tools are limited to uses that do not infringe on constitutional protections.
“Consistent with human nature, technology gives more options and flexibility to law enforcement and those options are going to be pursued by government, perhaps at the expense of individual liberties, unless there is something to prevent that from happening,” Lee said.
“We’ve seen this with every major technological innovation that’s happened. We’ve all taken an oath to uphold and to protect the Constitution’s rights ... and it is our duty to ensure that threats to it are not ignored.”