SALT LAKE CITY — The advancements in facial recognition technology, DNA test assessments and manipulation of consumer digital data, among other high-tech innovations, have moved far too fast for lawmakers and regulators to keep pace with them.
And as public policy actions on these topics have come to a near standstill at the federal level, state legislators in general and Utah lawmakers specifically, have worked to build some safeguards to protect individual privacy rights and bolster Fourth Amendment protections.
The 2020 edition of the Utah Legislature will see a bevy of efforts aimed at gaining ground on how some newly developed tech tools are put to use, and particularly where they intersect with — or intrude into — the realm of Utah residents’ personal privacy.
Rep. Craig Hall, R-West Valley City will be among Utah lawmakers who will be working this session to set legal parameters for how new technology is put to use and said he and his colleagues have a solid record of addressing issues raised by emerging tech.
“Big picture, the Utah Legislature has had a pretty strong record of protecting individual privacy in light of new technologies,” Hall said.
The role of facial recognition
One of those new, tech-driven tools is facial recognition technology. The ability to use automated software to digitally identify an individual has great potential in areas like security, identity verification and numerous uses that the retail and hospitality industries are excited about. But it’s how it can and is being utilized in other arenas that has raised concerns among some Utah lawmakers.
The Chinese government is using it as a racial profiling tool in its 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. And last year it was revealed that 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.
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%.
An attempt to codify some restrictions on the use of facial recognition tools in Utah had a hearing before a state legislative interim committee in November, 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 legislative void in which the use of facial recognition software is not addressed.
Thatcher told the Deseret News that he had no plans to try to revive the effort in the 2020 general session but Sen. Kirk Cullimore, R-Draper, announced in December he would be running a bill aiming to institute new limitations on government use of facial recognition tools.
Genetic testing for family research — and beyond
It’s been well over a decade since the international Human Genome Project announced reaching the end of its “inward voyage of discovery,” successfully completing a project that provided the world the “ability, for the first time, to read nature’s complete genetic blueprint for building a human being.”
Since then, genomic innovations have advanced at a dramatic rate, including the development of technology that has enabled a new realm of direct-to-consumer genetic testing services that are cheap, fast and ubiquitous. Spit into a tube, send it out the door and in mere weeks you can find out the ethnic and geographic origins of your ancestors and, more personally, some pretty minute details about what physical and psychological anomalies may be coming your way.
A collateral outcome of this new volume of genetic testing are massive new databases holding troves of genetic data, veritable gateways to the most personal information about tens of millions of individuals.
Now civil rights advocates are backing Utah lawmakers in the effort to establish some basic protections on this data as law enforcement and other government agencies are increasingly accessing this information as a genetic blueprint for building the perfect criminal case.
Last month, Connor Boyack, president of Utah-based libertarian public advocacy group Libertas Institute, told the Deseret News that while the technology is a boon to amateur genealogists, the way it is being leveraged by government agencies raises concerns.
“In the past couple of years, law enforcement around the country have identified a new opportunity to use DNA to find and catch bad guys,” Boyack said. “At first blush, many might think this is an exciting new tool to catch criminals, however, when you look at it more closely, it’s actually a very profound violation of privacy.”
Hall said in December he’s set to sponsor the effort in the current legislative session. Hall said he believes it is necessary to establish some statutory privacy protections when it comes to law enforcement access to DNA data.
“There are certain companies out there that do genetic testing that will strongly fight against any law enforcement searching in their database,” Hall said. “Ancestry and 23andMe, they resist searches by law enforcement. And there are some databases that are more publicly available ... and some of those individuals using those services may ‘quote-unquote consent’ to letting the government search their own DNA but the challenge with this is when one person submits their DNA, they’re not only submitting their own information, but that of their family members who not only may not have consented, but who in fact may strongly dissent.”
Hall said creating new rules to govern how an individual’s DNA data is used requires navigating the territory between appropriate law enforcement procedures and the constitutional rights of every individual.
“We all want to hold criminals accountable, but in the balancing act of privacy and due process, the mass search of genetic databases is too problematic to allow,” Hall said.
Hall highlighted successful passage last year of HB57, which created a warrant requirement for law enforcement access to personal digital information stored by third-parties as well as recently adopted new rules on drone operation, the use of so-called “stingray” devices to track cellphones, use of automated license plate readers and some initial state rules to govern the operation of autonomous vehicles on Utah roads.
While more tech-focused bills are likely to surface later in the session, right now it appears Utah lawmakers are set to consider updates to state law in the areas of cryptocurrency, identity theft, electronic harassment and online consumer data protection.