From Washington state to Washington DC, lawmakers rush to regulate facial recognition

Amid the start of an impeachment trial; talk of mounting hostility with Iran; new trade deals with China, Canada, and Mexico; and the final presidential debate before the start of the Democratic presidential primary season, you might’ve missed it, but it was also a momentous week for facial recognition regulation.

A bipartisan group in Congress wants action, roughly a dozen state governments are considering legislation, and overseas news broke Thursday that the European Commission is considering a five-year moratorium on facial recognition among potential next steps. This would make the EU the largest government worldwide to halt deployment of the technology.

In Washington, DC this week, the House Oversight and Reform Committee pledged to introduce legislation in the “very near future” that could regulate facial recognition use by law enforcement agencies in the US. Just like in hearings held last summer, members of Congress exhibited a fairly unified, bipartisan position that facial recognition use by the government should be regulated and in some cases limited. There was talk of regulation, but until this week, the future of sweeping facial recognition regulation seemed uncertain.

Congress on Civil Rights, the Constitution, and facial recognition

Lawmakers seem to have a sense of urgency to take action for a variety of reasons, including a lack of standards for businesses; governments; and local, state, and federal law enforcement.

One major area of focus: violation of the 1st amendment right to freedom of assembly, and the idea that facial recognition might be used to identify people at political rallies or track political dissidents at protests.

“It doesn’t matter if it’s a President Trump rally or a Bernie Sanders rally, the idea of American citizens being tracked and cataloged for merely showing their faces in public is deeply troubling,” Jordan said.

“The urgent issue we must tackle is reigning in the government’s unchecked use of this technology when it impairs our freedoms and our liberties. Our late chairman Elijah Cummings became concerned about government use of facial recognition technology after learning it was used to surveil protests in his district related to Freddie Gray. He saw this as a deeply inappropriate encroachment on the freedom of speech and association, and I couldn’t agree more,” Jordan said.

Another reason lawmakers are anxious to regulate facial recognition: Civil rights protections and the great potential for racial discrimination.

Analysis by the Department of Commerce’s National Institute for Standards and Technology (NIST) last month found that some facial recognition systems are anywhere from 10 to 100 times more likely to misidentify groups like the young, elderly, women of color, and people of Asian or African descent.

Facial recognition systems that exhibit discriminatory performance, lawmakers contend, can exacerbate existing prejudices and overpolicing of schools and communities of color.

NIST’s analysis follows studies in 2018 and 2019 by AI researchers that found misidentification issues for popular facial recognition systems like Amazon’s Rekognition. Amazon has not agreed to have its AI analyzed by NIST, director Dr. Charles Romine told Congress this week.

Romine said talks between NIST and Amazon are ongoing on the subject of Rekognition review by the federal government.

If any one company seemed to be a main source of attention or ire for the committee, it’s Amazon.

Amazon lobbied members of Congress on the subject and has stated a willingness to sell its facial recognition to any government agency. Amazon reportedly marketed Rekognition to ICE officials, but the extent to which facial recognition is sold to government agencies is still unknown. In a shareholder vote last summer, Amazon chose to continue to sell facial recognition services to governments.

One factor that lawmakers say motivates a sense of urgency: China. In the EU, Washington DC, and on the state and local level across the U.S., lawmakers frequently cite China’s use of facial recognition to strengthen an authoritarian state as a future they want to avoid.

Meredith Whittaker is cofounder of the AI Now Institute cofounder and former Google employee. In testimony earlier this week she talked about how facial recognition is often used by those in power to monitor those without power and described the difference between usage in the U.S. and China. Last month, the AI Now Institute called for a ban of business and government use of facial recognition technology.

“I think it is a model for authoritarian social control that is backstopped by extraordinarily powerful technology,” Whittaker said about China’s use of facial recognition software. “I think one of the differences between China and the U.S. is that there, the technology is announced as state policy. In the U.S., this is primarily corporate technology that is being secretly threaded through our core infrastructures without that kind of acknowledgment.”

Washington state’s impact on facial recognition regulation

A handful of cities put facial recognition bans and moratoriums in place in 2019, but state legislatures in 2020 are already moving even faster to regulate the technology. Since the start of the years, 10 state legislatures introduced bills to regulate the use of facial recognition software, according to the Georgetown University Law School Center on Privacy and Technology.

In the state of Washington, the stakes may be unlike anywhere else in the world. Legislation to regulate use of facial recognition in Washington can be particularly influential, since the Seattle area is home to Amazon and Microsoft, two of the largest companies selling facial recognition software to governments. Axon, maker of police body cameras and video cloud storage provider, is also in Washington.

In Washington, state lawmakers this week started a second attempt to pass the Washington State Privacy Act. Known as SB 6281, the bill would regulate data privacy law and require “meaningful human review” of facial recognition results when used by the private sector. In a press conference Monday, the bill’s chief sponsor, Sen. Reuven Carlyle, said Washington is moving forward because there isn’t time to wait for lawmakers in Washington DC to deliver privacy regulation to reign in business use of private data. Carlyle said the bill takes cues from CCPA in California and GDPR in Europe.

A different version of the Washington Privacy Act passed the Washington State Senate with a near unanimous vote in spring 2019 but died in the Washington State House of Representatives.

Lawmakers complained last spring that the legislative process was tainted by lobbying from tech companies like Microsoft, and that companies like Amazon and Microsoft played too much of a role in drafting the 2019 version of the Washington Privacy Act.

Also introduced this week in Washington is SB 6280, a bill to regulate government use of facial recognition. The bill’s chief sponsor, State Senator Joe Nguyen, is a senior program manager at Microsoft, according to his LinkedIn profile. Nguyen is also a cosponsor of the Washington Privacy Act.

Microsoft initially supported the Washington Privacy Act last year but came to oppose amendments to the bill, calling them too restrictive. Microsoft also opposed a moratorium proposed by the ACLU, one of the first such moratoriums to be considered by any state legislature.

Jevan Hutson leads facial recognition and AI policy at the University of Washington School of Tech and Public Policy Clinic. He testified in multiple hearings in Olympia, Washington this week in favor of HB 2363, a bill that would make biometric data the sole property of an individual, and in opposition to the latest iteration of the Washington Privacy Act.

He also introduced a bill known as the AI Profiling Act. The legislation, which he drafted with others at the University of Washington, would outlaw the use of AI to profile people in public places; in important decision-making processes for a number of industries; and to predict a person’s religious affiliation, political affiliation, immigration status, or employability.

His position is that facial recognition may have some legitimate use cases, but it’s also a perfect surveillance tool, and that the root cause motivating facial recognition supporters is to create a new, invasive surveillance capitalism-driven marketplace.

Like last year, he believes the permissive regulatory framework found in the Washington Privacy Act that rejects the idea of a moratorium comes about due to the outsized influence of technology companies in Washington State that stand to profit from the widespread deployment of facial recognition.

He views Microsoft’s involvement and lobbying in 2019, and again in 2020, as an effort to create an initial framework of what facial recognition regulation should look like so they can bring that model to other states and Washington DC.

While speaking at Seattle University last year, Microsoft president Brad Smith said legislation passed in Washington could go on to shape facial recognition policy around the world.

As lawmakers in favor of the bill lay the necessary groundwork to attempt to pass the bill for a second time, politicians and advocates like Hutson argue legislation should take into account the demonstrated harm facial recognition can do and reject the idea that widespread use of facial recognition is inevitable. 

“I think legislators and advocates here are seriously concerned and recognize that we need to get out front,” he said. “I think that sort of gets to the question of why now; it’s so important that we act because things will be bought by governments, and businesses will begin to deploy these things if there is not a clear sign from regulators and legislators both at the federal and local level to say, ‘No, this is not a valid market given the dangers that it poses.’” 

Hutson also calls action in the near future important in order to shut down the idea that stifling innovation, a common argument against regulation, is always a bad thing. Facial recognition is being used for payments and to arrest people accused of crimes in China, but it’s also being used to track or imprison ethnic minorities, a use case he says could also be considered innovative.

“Innovation in many ways is this sort of false religion right where it’s like innovation in and of itself is a perfect good, and it’s not,” he said. “This is innovation worth stifling. Like I don’t think we should be super innovative with nuclear weapons. We don’t need even more innovative forms of oppression to be legitimized and authorized by the state legislature.”

Finishing thoughts

As laws get hammered out, stories of outrage continue.

In recent days, in Denver, where the city council is considering a facial recognition ban, advocates demonstrated that all nine members of the council met a 92% accuracy rate as people on the local sex offender registry.

There’s also the story Clearview AI, a startup that allows people to upload an image of a person then find where else on the web that person’s images appeared.

“It’s creepy what they’re doing, but there will be many more of these companies. Absent a very strong federal privacy bill, we’re all screwed,” Stanford University professor Al Gidari told the New York Times.

Steps taken this week to introduce legislation are just the beginning.

Bills and regulations continue to percolate through state legislatures and the halls of Congress, and as they do, the string of stories that refresh outage and brought about the initial sense of urgency seem likely to continue.

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