Facial recognition should be regulated rather than banned

Bans on facial recognition software are deceptive. We can protect civil freedoms while while making appropriate use of technology (like finding missing children).

Facial recognition prohibitions have problems, according to recent reports from Virginia. Virginia lawmakers established one of the most stringent facial recognition restrictions in the country in 2021. The restriction will be lifted later this year by the same politicians. Fears of an upsurge in violent crime have prompted other jurisdictions around the country to repeal similar restrictions. Virginia officials appear to have accepted a false choice between banning facial recognition and its widespread, unregulated use by law enforcement. However, there are policies in place that would allow police to utilize facial recognition while maintaining civil freedoms.

I've already discussed these policies on this site. When I announced those policies in 2019, there was a lot of discussion about whether police should be allowed to utilize facial recognition. There was, and still is, significant fear that the use of facial recognition in police departments would lead to disproportionate misidentification of ethnic minorities. Face recognition has been banned across the country as a result of this worry. Some of these initiatives have resulted in prohibitions, such as the Virginia ban imposed last year.

Citizens should be worried about how current and upcoming surveillance technologies harm minorities disproportionately. There is a lengthy history of police enforcement snooping on racial, religious, and political minorities in the United States. We should expect further episodes of mass monitoring in the absence of regulation, openness, and supervision.

For mass surveillance, facial recognition is an ideal tool. Chinese officials frequently demonstrate how facial recognition may be used to monitor entire communities. The fact that facial recognition can be used for mass surveillance does not, however, justify blanket restrictions. Face recognition technology has a lot of potential applications. Police could use facial recognition to locate missing children and Alzheimer patients. It can also be used to track down perpetrators of violent crimes.

Fortunately, policymakers do not have to pick between banning facial recognition or allowing police departments to use it freely. In 2019, I proposed policies that would allow police to employ facial recognition while simultaneously protecting civil liberties:

1) Real-time functionality is prohibited.

2) Database constraints

3) Data/open source requirements

4) Requirement of a public hearing

5) Minimum minimum

More information on each of these suggestions may be found here:

San Francisco is expected to become the first city in the United States to outlaw the use of facial recognition technology by police officers and other government officials. Police use of facial recognition raises legitimate concerns. Face recognition is a huge danger to our privacy and might stifle First Amendment-protected protests and other legal activity if there are no sufficient constraints in place. Given these issues, it makes reasonable to keep the technology out of the hands of law enforcement until appropriate policies are in place. While San Francisco officials examine a ban, we should think about whether there are policies in place that would allow police to employ facial recognition without jeopardizing our civil freedoms, or if the risk of misuse is so severe that a ban is necessary.

The term "facial recognition" refers to a variety of technologies that employ automated picture analysis to confirm identity. While facial recognition technologies have recently received a lot of attention, they have been around for decades. Face recognition has received a lot of attention recently because of its improving accuracy and widespread use.

Face recognition systems are used by private businesses, police enforcement organizations, and national governments all over the world. At its best, facial recognition may help banks and schools improve security, assist the blind, and make payments easier. In its worst form, though, it is an ideal tool for constant and widespread surveillance. Authorities in China employ facial recognition to monitor and punish jaywalkers. This technology is a critical component of one of the world's most extensive, intrusive, and oppressive monitoring systems, which the Chinese government employs against the Uyghur Muslim minority in western Xinjiang province. While there are many distinctions between the United States and China, it is important to remember that when it comes to surveillance, the differences between the two countries are more legal and regulatory than technological.

Although Americans and its residents have better civil rights safeguards than Chinese citizens, we should be concerned about domestic law enforcement's use of surveillance technology. After all, government enforcement already uses facial recognition technology, and manufacturers have demonstrated interest in upgrading it in ways that could jeopardize civil freedoms.

According to Grand View Research, we should expect law enforcement to spend more on facial recognition. In 2018, the size of the government “facial biometrics” market was $136.9 million and is expected to be $375 million in 2025. 

The scale of law enforcement’s current use of facial recognition is larger than many realize. According to Georgetown’s Center on Privacy and Technology half of American adults are already in a law enforcement facial recognition network, and at least 26 states allow law enforcement to conduct facial recognition searches against driver’s license and other ID photo databases. 

The growing and widespread use of facial recognition is of particular concern given improvements in recognition technology and the private sector’s interest in making surveillance technology more invasive. 

In 2017, the law enforcement equipment manufacturer Axon released its technology report. The report includes the following quote form Captain Daniel Zehnder, former manager of Las Vegas Police Department’s body camera program:

[T]he fact that I could potentially walk down the street with a camera in real time, scanning faces, doing facial recognition while it’s recording, sending that data to the cloud for real‐​time analysis, have that data come back and somebody tell me, “That guy in the red hat, red shoes you just passed, he’s wanted for burglary” That type of real‐​time, big data analysis application would be huge. 

In 2016 the Department of Homeland Security (DHS) issued a solicitation, asking private companies to build them small, portable Border Patrol drones with facial recognition capability. DHS is also keen on facial recognition at airports

Facial recognition systems vary in accuracy. Last year, news that Amazon’s facial recognition tool had misidentified 28 members of Congress made headlines. Eleven of the misidentified members of Congress are African Americans, promoting more commentary about longstanding and established concerns associated with racial bias and facial recognition. Amazon responded that the test, performed by the American Civil Liberties Union, used a confidence threshold of 80 percent rather than the Amazon‐​recommended 95 percent. 

False positives are a worry, especially considering that police across the country could one day (without restrictions like those in Baltimore) be outfitted with body cameras capable of real‐​time facial recognition capability.Unnecessary harassment of law-abiding citizens and residents would not only waste time, but it would also undermine police-community ties. There would be severe difficulties even in a world where real-time facial recognition body camera technology is 100 percent accurate. Will protesters be more likely to congregate if they knew police with facial recognition body cameras would be present? What about people who go to religious events, gun exhibits, strip joints, or abortion clinics?

San Francisco officials are plainly concerned about monitoring, racial bias, and free expression. Face recognition is expected to be banned in San Francisco as a result of these concerns. Given the level of facial recognition technology and the potential for abuse, such a prohibition may be reasonable. However, we should consider whether any policies exist that would allow police to utilize facial recognition without jeopardizing civil liberties.

The following are the conditions that must be met for law enforcement to use face recognition technology:

— A prohibition on real‐​time capability: Facial recognition technology should be used as an investigative tool rather than a tool for real‐​time identification.

— Database restrictions: Law enforcement facial recognition databases should only include data related to those with outstanding warrants for violent crimes. Law enforcement should only be able to add data related to someone to the database if they have probable cause that person has committed a violent crime. Relatives or guardians of missing persons (kidnapped children, those with dementia, potential victims of accidents or terrorist attacks) should be able to contribute relevant data to these databases and request their prompt removal. 

— Open source/​data requirement: The source code for the facial recognition system as well as the datasets used to build the system should be available to anyone.

— Public hearing requirement: Law enforcement should not be permitted to use facial recognition technology without first having informed the local community and allowed ample time for public comment. 

— Threshold requirement: Deployment of facial recognition should be delayed until law enforcement can demonstrate at least a 95 percent identity confidence threshold across a wide range of demographic groups (gender, race, age, etc.).* 

Such standards would make facial recognition in law enforcement extremely unusual, if not nonexistent, which are bullets I'm ready to take. These conditions, however, are not a prohibition. Given the current state of affairs, a facial recognition ban seems reasonable in San Francisco. Many San Francisco citizens would be relieved by such a restriction, but we should analyze if prohibitions are the best facial recognition regulations.


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