“Every Move You Make, Every Step You Take…”: New Legal Concerns Over Facial Recognition and Biometric Technology

*Lisa Blitstein

In 2020, uncovered faces and public outings are a rarity as Americans wear face masks and stay home to prevent COVID-19.[1]  But while people see each other less than ever before, Congress is assessing how government entities collect data on our faces, specifically through federal use of facial recognition and biometric identification technology.[2]

I. What is the Biometric Identification Law that Congress is Considering?

  On June 25, 2020, United States Senator Ed Markey (D-Mass.) introduced the Facial Recognition and Biometric Technology Moratorium Act of 2020.[3]  Under this Act, all federal officials would be prohibited from using technology to track physical characteristics, locations, social associations, or activities of individual people without statutory authorization.[4]  The prohibition also includes tracking of voice recognition technology used to identify individuals based on their unique vocal characteristics.[5]  If federal officials were to violate the Act following its enactment, they would be prohibited from receiving federal funding under the Edward Byrne Memorial State and Local Law Enforcement Assistance Program, which allots money for governmental law enforcement.[6]

II. Law Enforcement Use of Facial Recognition Software

This year’s recent legal spotlight on facial recognition and biometric technology has much to do with the continuing public protests against police brutality, structural and systemic racism, as well as government responses to COVID-19 across the nation.[7]  Since May of 2020, people have taken to the streets to exercise their First Amendment right to assemble.[8]  In Baltimore, months of Black Lives Matter protests following the death of George Floyd reminded the nation of the city’s 2015 protests following the death of Freddie Gray, as a response to police brutality perpetuated against Black Americans.[9]  Even in 2015, federal officials used facial recognition software during the Freddie Gray protests to identify protestors by combing through their social media posts.[10]  Likewise, federal officials responded to demonstrations in various U.S. cities this year by using technologies to track, identify, and arrest individuals at the protests.[11]  Facial recognition advocates argue the technology can be a useful tool for identifying criminal suspects and deterring crime.[12]  However, those concerned about the use of facial recognition technology say that it contributes to the same problems that people are protesting to fix.[13]  The American Civil Liberties Union (ACLU) has argued that “[t]his technology is especially harmful for communities of color, which are already subject to over-policing and hyper-surveillance.”[14]  The ACLU also won a recent Portland lawsuit banning facial surveillance after federal officials used the technology to track protestors’ locations and with whom they associated.[15]  These tools raise additional concerns about the potential to endanger innocent people and convict them of crimes, as research has found a higher error rate for identification among minorities and women, as opposed to white men.[16]

III. Commercial Use of Facial Recognition Software

Beyond protests, laws governing facial recognition software are becoming increasingly important as the technology spreads throughout the realm of consumer personalization and security.[17]  Millions of Apple iPhone users interact with facial recognition technology on a daily basis to unlock their devices and access apps, while IBM, Microsoft, and Amazon offered general use facial recognition technologies for a variety of purposes.[18]  However, following recent backlash and ethical concerns, some of these companies have reassessed the limits on their software.[19]  In June 2020, IBM pulled its general-purpose facial recognition software from the market altogether in response to its potential use for “mass surveillance, racial profiling, violations of basic human rights and freedoms, or any purpose which is not consistent with . . . [IBM’s] values.”[20]  Meanwhile, Amazon implemented a year long moratorium on police use of their “Rekognition” technology, limiting its use to organizations working to rescue human trafficking victims or missing children.[21]

  Facial recognition and biometric technologies are expanding rapidly, but they still represent a new and largely unregulated area of federal law.[22]  Without concrete laws governing the use of these technologies, companies have been left to weigh their private interests in software development against the interests of federal officials in the public safety, privacy, and surveillance sectors.[23]  The Facial Recognition and Biometric Technology Moratorium Act of 2020 is an important step toward solidifying statutory restrictions on federal data collection of individuals’ identities.[24]  Hopefully, as people in America remain largely in the safety and privacy of their homes until the end of the COVID-19 pandemic, biometric data laws will protect them from the eerie, omnipresent feeling that even in isolation, someone is watching.

*Lisa Blitstein is a second-year day student at the University of Baltimore School of Law, where she is a Staff Editor for Law Review.  Lisa is a legal extern for the U.S. EPA, External Civil Rights Compliance Office (ECRCO), and an environmental law research assistant for UB Law Professor Sonya Ziaja.  Previously, Lisa interned for the Hon. Jeffrey M. Geller at the Circuit Court for Baltimore City, where she gained valuable experience that she hopes to use as a litigator after finishing law school.

[1]           See Mike Snider, Thanks to Coronavirus, Americans Looking at a Stay-at-Home Fall Season, Survey Suggests, USA Today (July 22, 2020, 1:55 PM), https://www.usatoday.com/story/money/2020/07/22/coronavirus-survey-another-season-lockdown-mask-wearing-ahead/5479999002/.

[2]           See generally Facial Recognition and Biometric Technology Moratorium Act of 2020, S. 4084, 116th Cong. (2020) (proposing “to prohibit biometric surveillance by the Federal Government without explicit statutory authorization and to withhold certain Federal public safety grants from State and local governments that engage in biometric surveillance.”).

[3]           Id.

[4]           Id. at §§ 2(3)(A)–(B), 3(a)(1).

[5]           See id. at §§ 2(1), 2(6)(A)(ii), 2(7), 3(a)(1).

[6]           Id. at § 4(a).

[7]           See Geoffrey A. Fowler, Black Lives Matter Could Change Facial Recognition Forever — If Big Tech Doesn’t Stand in the Way, Wash. Post (June 12, 2020, 11:13 AM), https://www.washingtonpost.com/technology/2020/06/12/facial-recognition-ban/.

[8]           See Davey Alba et al., Protests Swell in U.S. and Beyond as George Floyd Is Mourned Near His Birthplace, N.Y. Times, https://www.nytimes.com/2020/06/06/us/protests-today-police-george-floyd.html (June 7, 2020).

[9]           See German Lopez, The Baltimore Protests Over Freddie Gray’s Death, Explained, Vox, https://www.vox.com/2016/7/27/18089352/freddie-gray-baltimore-riots-police-violence (Aug. 18, 2016, 9:38 AM).

[10]         See Shira Ovide, A Case for Banning Facial Recognition, N.Y. Times (June 9, 2020), https://www.nytimes.com./2020/06/09/technology/facial-recognition-software.html.

[11]         See Katie Shepherd, An Artist Stopped Posting Protest Photos Online to Shield Activists from Police. Then, He Was Arrested., Wash. Post (Aug. 3, 2020, 6:19 AM), https://www.washingtonpost.com/nation/2020/08/03/philadelphia-arrest-protest-photos/.

[12]         See Bernard Marr, Facial Recognition Technology: Here Are The Important Pros And Cons, Forbes (Aug. 19, 2019, 12:31 AM), https://www.forbes.com/sites/bernardmarr/2019/08/19/facial-recognition-technology-here-are-the-important-pros-and-cons/#6d4300a14d16.

[13]         See Fowler, supra note 7.

[14]         Portland City Council Unanimously Passes Face Surveillance Ban, But Without Important Enforcement Provisions, ACLU (Aug. 4, 2020), https://www.aclu.org/press-releases/portland-city-council-unanimously-passes-face-surveillance-ban-without-important [hereinafter ACLU].

[15]         Id.

[16]         See Fowler, supra note 7.

[17]         See Jeffrey N. Rosenthal & David J. Oberly, The Rise of Facial Recognition Technology: Where We Are and What to Expect, BiometricUpdate (Feb. 4, 2020), https://www.biometricupdate.com/202002/the-rise-of-facial-recognition-technology-where-we-are-and-what-to-expect.

[18]         Malkia Devich-Cyril, Defund Facial Recognition, The Atlantic (July 5, 2020), https://www.theatlantic.com/technology/archive/2020/07/defund-facial-recognition/613771/.

[19]         Id.

[20]         Letter from Arvind Krishna, CEO, Int’l Bus. Machs., to U.S. Cong. (June 8, 2020), https://www.ibm.com/blogs/policy/wp-content/uploads/2020/06/Letter-from-IBM.pdf.

[21]         See We Are Implementing a One-Year Moratorium on Police Use of Rekognition,  amazon (June 10, 2020), https://blog.aboutamazon.com/policy/we-are-implementing-a-one-year-moratorium-on-police-use-of-rekognition.

[22]         See ACLU, supra note 14.

[23]         See Fowler, supra note 7.

[24]          S. 4084, 116th Cong. (2020).

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