Enough with Congressional Hearings on Facial Recognition: Pointers to Regulate the Technology

Recent news headlines about federal agencies using facial recognition technology to scour state databases around the country for Americans’ driving licenses without their knowledge or permission is rightfully drawing the ire of the public and some lawmakers.

Yet, if you are counting, Congress held its third hearing this year on the controversy surrounding facial recognition, with at least one more hearing planned. While holding congressional hearings on the use of the technology is a step in the right direction, lawmakers are risking getting bogged down in an endless bureaucratic, handwringing discovery process as the technology spreads quietly and rapidly, circumventing basic constitutional rights.

The time to create legislation to regulate facial recognition technology is now.

For starters, Congress can borrow some pages from the handbooks of city governments like San Francisco and Somerville, Massachusetts who moved as swiftly as possible to legislate the controversial technology. Citing concerns over an insidious surveillance culture, San Francisco took a bold stand and became the first city to ban its government agencies and law enforcement from using facial recognition technology because the tools’ opacity and invasiveness threaten basic civil rights and liberties. The city’s Stop Secret Surveillance Ordinance requires agencies to develop an approved surveillance technology policy before adopting the technology and to perform audits of facial recognition technology already in use.  Somerville followed San Francisco’s ban a month later with its own version, the Face Surveillance Full Ban Ordinance. Oakland may be next.

These cities determined it is not rocket science to grasp the potentially dangerous effects of facial recognition tools and, absent clear federal regulation, exercised measures aimed at protecting their constituents. Congress could echo that sense of urgency and adopt   legislation on the use of the technology.

In our report, Open The Government described the secrecy surrounding many of the technologies, including facial recognition tools, the largest technology contractors supply the government. Besides concerns that these surveillance tools secretly spy on citizens and non-citizens alike, civil society groups have consistently expressed concern these technologies being sold to the government are prone to bias and inaccuracies.

In fact, Congress has first-hand knowledge of this concern. Just last summer, an ACLU test showed Amazon’s face surveillance software, Rekognition, misidentified 28 members of Congress as people who had been arrested for a crime. Of the false matches, six members of Congress who are people of color, including Reps. John Lewis and Jimmy Gomez, were mismatched. In other studies, facial recognition tech demonstrated bias by disproportionately misidentifying women and dark-skinned individuals.

The lack of federal laws or regulations governing the use of facial recognition programs amplifies civil rights advocates’ concerns that they can result in widespread misidentifications, with innocent people potentially being caught in the policing net.

Compounding concerns about facial recognition technology in the hands of law enforcement is the fact that constitutional precedents on police use of facial recognition without a warrant do not exist, and courts have yet to decide whether facial recognition constitutes a search under the Fourth Amendment. In the meantime, facial recognition software is enabling surveillance programs that violate due process rights and disproportionately target immigrant communities and people of color with no legal recourse.

With little transparency or oversight from lawmakers or the public, the technology is proliferating under the cloak of nondisclosure agreements.  This is because large government contractors that peddle the tech are not subject to the Freedom of Information Act (FOIA). As a result, the more government services are being provided by private contractors the less ability the public has to access information related to that work.

If the public records laws that can help to uncover the harm and inefficiencies associated with facial recognition and other tech acquired by the government are unenforceable how can American taxpayers be assured they are not paying for faulty technology products that in turn violate their privacy?

If Congress is serious, there are practical steps it can take to correct the current lack of meaningful oversight. It can require government agencies to put in place strict safeguards and privacy standards before acquiring and deploying facial recognition technology.

While the private sector has the upper hand bringing to market the latest technological inventions, our lawmakers cannot properly conduct oversight on AI technologies if they do not understand it. This equation can be balanced by requiring independent parties to conduct and publish tests of AI systems, including facial recognition tools, provided to government for explainability and predictability so Congress can understand the technology’s accuracy and effectiveness. By creating rules and allocating resources to incentivize lawmakers to employ staffers with relevant technical expertise needed for effective oversight, Congress can also close the technological expertise gap that typically exists between the public and private sectors.

As private contractors engage in relentless competition to secure increasingly larger contracts that supply government agencies with even more secretive new technologies, there needs to be congressional oversight of private contractors alongside FOIA reform to ensure the public is empowered with information to understand the use and impact of surveillance technology.

Lastly, to protect against unlawful surveillance and to ensure law enforcement officials only use the technology when there is suspicion of criminal conduct, Congress must ensure the use of facial recognition is conditioned on judicial authorization based on probable cause. Only as Congress takes concrete steps of oversight and holding technology contractors accountable will the public’s confidence in the vast potential of innovative facial recognition technologies be strengthened. So, Congress, enough with hearings on facial recognition. It is time to pass new legislation that shows us you were listening in the ones you have already held.