In response to privacy and civil rights concerns over the deployment of facial recognition technology for law enforcement purposes, Senator Coon (D-DE) proposed a bill to regulate its use.
The Facial Recognition Technology Warrant Act of 2019 applies to ongoing surveillance: to follow an “individual through one or more public places… over a period of time greater than 72 hours” using facial recognition technology, investigators or law enforcement agents will need a judge’s approval. The use of facial recognition technology to identify a person in a single point in time or in one location remains unrestricted under this bill, as is ongoing surveillance in private places and for the acquisition of foreign intelligence.
Law enforcement agents need to apply for a court order before or within 48 hours of the start of surveillance (in the latter case, to enable an urgent and compelling law enforcement activity). Use of facial recognition needs to stop immediately if the application is rejected. Even when approved, law enforcement agents need to “minimize the acquisition, retention, and dissemination of information” about anyone other than the surveilled individuals.
Surveillance using facial recognition can only be short term. The court order, in fact, can only be issued for a period of 30 days at most, renewable for other 30. If surveillance activities were infringing on a court order or if approval was obtained on insufficient pretenses, the surveilled individual can request the suppression of the collected information before trial. However, there are two exceptions to override the request for suppression: if the US attorney successfully appeals from a motion to suppress, or if the officer collecting the information held “an objectively reasonable belief” that the requirements of this bill had been met.
Judges are required to report to the Administrative Office of US Courts on any court order application. The latter will publish a yearly public report outlining information about court order applications (status, identity of the requesting officer and the reviewing judge), the conditions under which they were granted (period of time, offense), the technology used (facilities, cameras, data used for identification), and identifications and misidentification made during the course of the year.
To limit misidentifications and monitor the performance of facial recognition systems, especially across different subpopulations, an officer needs to review the recommendations of any facial recognition system. The head of each agency using the technology together with the National Institute of Standards and Technology will conduct periodic and independent performance tests of their facial recognition systems, especially with respect to error rates across different subpopulations, reflecting concerns over facial recognition performance biases based on race, gender, and other characteristics that can reinforce profiling.
Facial recognition technology is currently being used by the Federal Bureau of Investigation (FBI), Immigration and Custom Enforcement (ICE), and the Transport Security Administration (TSA), as well as several state and local police departments across the country. The potential for widespread and unrestricted use of facial recognition for law enforcement hit the headlines in early 2020 as Clearview AI offered law enforcements with a facial recognition software.
In response, some local governments have banned use of facial recognition for law enforcement purposes. Advocacy groups are afraid that widespread use of facial recognition has the potential to undermine privacy and civil liberties as it can deter individuals from legal activities, like protests or attending LGBTQ meetings.
This bill responds to those concerns with a unified approach at the federal level. Yet critics suggest the bill does not go far enough: loopholes would permit use of the technology without judicial oversight and the focus on ongoing surveillance does not reflect what the technology is mostly used for by law enforcement agencies — identification — which would remain unrestricted.