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Is Congress About to Take a Shot at Regulating Facial Recognition Technology?

Smartphone scanning a face
By Joseph Fawbush, Esq. on January 15, 2020 2:02 PM

Facial recognition technology is improving. As it does, its use is increasing, and not just for law enforcement investigations. From theme park entrances to your neighbor's door camera and the phone in your pocket - facial recognition software can be used almost everywhere. As a result, facial recognition technology is also raising significant new legal concerns. For now, however, there is no federal regulation of the technology or its use, even as the $3.2 billion dollar industry is expected to more than double in 2020.

Facial recognition technology software analyzes databases of photographs looking for key features, such as distance between the eyes, that it can match. While the software continues to improve, it is by no means always accurate.

Will Congress Make Strides On Regulation in 2020?

It is in this atmosphere that the House Oversight and Reform Committee held a hearing on facial recognition technology on January 15. It was the third such hearing, delayed due to the death of its former chairman, Elijah Cummings. The Committee, which has not introduced legislation, is hearing from a variety of perspectives on the role the federal government should play in limiting its use.

In just the seven month delay between hearings, the technology has seen a greater focus on its potential problems and abuses. In one investigation by a privacy advocacy group, Denver City Council members were falsely matched to people on the sex offender registry list using facial recognition technology, as just one example.

Legal Implications Abound

Earlier this week, The New York Times reported on police use of facial recognition technology, finding that it had a low success rate, particularly when used in grainy security camera footage. What's more, it is not always clear when police use facial recognition technology in its investigations, raising questions of due process. Civil rights and privacy concerns are also primary issues. In China, for example, the government uses facial recognition technology to surveil its citizens using a network of some 200 million cameras throughout the country. There's also some evidence of racial biasin facial recognition technology, with even the most advanced software struggling to identify black women.

States and Cities Leading the Way

San Francisco has already implemented a well-publicized ban of facial recognition technology, passing an ordinance in 2019 prohibiting law enforcement from using it. Washington state this week also introduced legislation regulating facial recognition technology, although the proposed legislation does not ban it outright.

At the federal level, there is bipartisan support in Congress for some measures, such as limiting federal funding for its use by federal law enforcement agencies, according to The Washington Post. However, it is not clear there is agreement on the details. While some are calling for a ban similar to San Francisco's, other members of Congress are urging a more restrained approach involving increased oversight.

It is an issue that should continue to generate controversy and focus in for the upcoming year.

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