Bill Introduced to Require Warrant for Facial Recognition

Senators Chris Coons (D-DE) and Mike Lee (R-UT) have introduced legislation requiring federal law enforcement to obtain a court order before using facial recognition technology for public surveillance. Lawmakers have described the legislation as an attempt to balance privacy concerns with law enforcement efforts.

The Facial Recognition Technology Warrant Act of 2019 was introduced with the goal of creating “uniformity when it comes to how, when, and where the federal government deploys facial recognition technology,” Senator Coons’ office explained in a press release.

As the use of facial recognition grows throughout law enforcement systems, some groups such as the Massachusetts American Civil Liberties Union have called for a moratorium on its use until proper regulation can be put in place to ensure it is not misused.

“Facial recognition technology can be a powerful tool for law enforcement officials,” said Senator Lee in the aforementioned press release. “But it’s [sic] very power also makes it ripe for abuse. That is why American citizens deserve protection from facial recognition abuse.”

The lawmakers noted that an outright ban would undermine the technology’s legitimate use in law enforcement cases, making the country less safe and discouraging innovation. Alternatively, their bill would subject facial recognition to similar procedural guidelines as other investigative techniques.

According to a one pager provided by Senator Coons’ office, the legislation would require federal law enforcement to obtain a warrant based on probable cause of criminal activity in order to utilize facial recognition technology for a time period exceeding 72 hours. Allowance would be granted for a maximum of 30 days and law enforcement entities would be required to minimize the acquisition, retention, and dissemination of information gathered.

Facial recognition could be used without a warrant under exigent circumstances under the bill.

The bill also requires judges issuing a decision on a warrant to report the outcome of the warrant application to the Administrative Office of the United States Courts. The office must record the data and submit a report on the warrants to the Senate and House Judiciary Committees.

A principle concern of the Massachusetts ACLU is the technology’s impact on minority groups. In a letter to the state legislature, the group explained that facial recognition algorithms developed by prominent companies misidentified faces of darker skinned women up to 33 percent of the time.

Under the Coons-Lee bill, federal law enforcement agencies would be required to work with the National Institute of Standards and Technology (NIST) to establish testing systems to ensure the technology is accurate and does not have disparate error rates based on a person’s gender, age, or ethnicity.

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