Congress is wrestling with how to govern police use of facial recognition technology as software to scan databases or find people in crowds becomes more prevalent among federal, state and local law enforcement agencies across the country.

Lawmakers on both sides of the aisle say the burgeoning technology raises serious free speech, due process and search-and-seizure concerns.

A former U.S. attorney for Utah told a congressional subcommittee Tuesday that there is a lack of transparency, accountability and basic information about how police use the technology, outside of “vague assurances” that people should trust the government to safely use the technology.

“Many of the fundamental questions that you likely want — and deserve — answers to are currently unanswerable. Questions such as: How many law enforcement entities use facial recognition? How often do they use it? Who is in their databases and why?” Brett Tolman told the House Judiciary Committee’s Crime, Terrorism, and Homeland Security Subcommittee.

A video surveillance camera is installed on the ceiling above a subway platform in the Court Street station in the Brooklyn borough of New York on Oct. 7, 2020. | Mark Lennihan, Associated Press

Tolman, executive director of the conservative organization Right on Crime, called what is known about use of the technology “daunting.”

A recent Government Accountability Report revealed that in addition to the FBI, the U.S. Fish and Wildlife Service and the Internal Revenue Service are among 20 federal agencies that use the software. One estimate placed the government market for facial recognition technology in the U.S. at $136.9 million in 2018, with the expectation that it would nearly triple by 2025, he said.

Another estimate suggested that as of 2016, at least 1 in 4 police departments had the option to run facial recognition searches, a number that Tolman said has certainly grown since then.

The Utah Legislature passed a bill earlier this year requiring government entities that use someone’s photo in conjunction with facial recognition technology to notify that person about how it could be used. 

The law requires police to submit a written request to conduct a facial recognition comparison that includes a statement about the specific crime being investigated. Government employees may only comply with requests made for felony investigations, violent crime or threats to human life, or to identify a person who is dead, incapacitated, at risk.

Motor vehicle departments in at least 20 states have handed over driver’s license data to the FBI, said Rep. Jim Jordan, R-Ohio, the ranking member of the House Judiciary Committee

“No American citizen gave consent to have their data and images turned over to the FBI. No elected official ever voted to allow this to happen,” he said.

In addition to drawing on images secured through the criminal justice system, the government gathers millions of driver’s license and passport photos, Tolman said. Private technology companies that contract with police have harvested billions of photos posted on platforms such as Facebook, YouTube and even Venmo.

“This collection is an unprecedented invasion of privacy that places enormous, undue control in the hands of the government and Big Tech, two entities not always known for their light touch or responsible use of power,” he said.

The issue made headlines in 2019 when national and local news outlets reported on the long-running practice of making a database of Utah driver’s license photos, including those of minors, available without warrants to federal and local law enforcement agencies to perform dragnet-like searches using advanced facial recognition software programs.

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“There is a tension we must address,” said House Judiciary Committee Chairman Jerry Nadler, D-N.Y..

“On the one hand, this technology is now a commonplace fixture in our lives,” he said. “On the other hand, most Americans have little understanding of how the police use facial recognition technologies to conduct surveillance in communities across the country, for better or worse.”

There are several “disturbing” reports of how police have misapplied the technology when attempting to match women and people of color, he said. Adoption of the program must not further erode trust between citizens and police or disproportionately impact people of color, Nadler said.

Tolman said walking out the door in the morning can be an exercise in skipping from one camera to another, from the convenience store on the corner to the traffic camera in front of it. Besides the “perpetual passive” surveillance, police can potentially add recordings from body-worn cameras or from the smartphone in an officer’s pocket.

“In short, there are very few instances where law enforcement will not have the opportunity to subject a person of interest to facial recognition technology,” he said.

Despite his reservations about the practice, Tolman said he’s not saying law enforcement should never have access to the technology. He said it’s unrealistic to expect police to deny themselves a tool that is increasingly prevalent in the commercial sector and has a powerful capacity to improve public safety.

“However, acknowledging there are credible uses for facial recognition technology and voicing support for law enforcement is not the same as writing a blank check for power and then looking the other way,” he said.

Rep. Burgess Owens, R-Utah, a member of the committee, said that society can’t rely on technology to deal with increased crime. He said it is a tool to support human relationships.

“We cannot continue to demean and disrespect the good men and women policing our communities and expect technology to make up for it,” he said.