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Proposed Legislation Would Ban Use of Biometric Technology by Federal Law Enforcement

Biometric technology, including facial recognition tools, increasingly used by federal law enforcement agencies would be banned should a new bill sponsored by Democratic lawmakers in the upper and lower Congressional chambers pass legislative inspection.

The Facial Recognition and Biometric Technology Moratorium Act springs from research that points to the technology’s systematic inaccuracies and racial biases, its crafters Sens. Edward Markey (D-MA) and Jeff Merkley (D-OR), and Reps. Pramila Jayapal (D-WA) and Ayanna Pressley (D-MA), said. The bill also effectively strips federal support for state and local law enforcement agencies that use biometric technology.

A recent report by the National Institute of Standards and Technology found that facial recognition tools used by law enforcement misidentified Black, Brown, and Asian individuals up to 100 times more than white male faces. The proposed bill responds to reports that federal law enforcement bodies have engaged with facial recognition companies and receives encouragement from pledges by Amazon, IBM and Microsoft to temporarily stop selling their technology to those bureaus.

Related: Artificial Intelligence & Facial Recognition – Regulations & Potential AI Bias

Specifically, the Act would:

  • Place a prohibition on the use of facial recognition technology by federal entities, which can only be lifted with an act of Congress.
  • Place a prohibition on the use of other biometric technologies, including voice recognition, gate recognition, and recognition of other immutable physical characteristics, by federal entities, which can only be lifted with an act of Congress.
  • Condition federal grant funding to state and local entities, including law enforcement, on those entities enacting their own moratoria on the use of facial recognition and biometric technology.
  • Prohibit the use of federal dollars for biometric surveillance systems.
  • Prohibit the use of information collected via biometric technology in violation of the Act in any judicial proceedings.
  • Includes a private right of action for individuals whose biometric data is used in violation of the Act and allows for enforcement by state Attorneys General.
  • Allow states and localities to enact their own laws regarding the use of facial recognition and biometric technologies.

The bill’s sponsors are boldly defending its timing and appropriateness. “Facial recognition technology doesn’t just pose a grave threat to our privacy, it physically endangers Black Americans and other minority populations in our country,” said Markey. “In this moment, the only responsible thing to do is to prohibit government and law enforcement from using these surveillance mechanisms,” he said. Merkley called the use of facial recognition technology a “step in the wrong direction…The federal government must ban facial recognition until we have confidence that it doesn’t exacerbate racism and violate the privacy of American citizens.”

Facial recognition technology has been “unapologetically weaponized” by law enforcement against Black people, said Jayapal. The bill will protect civil liberties and fight back against racial injustice, she said. “Black and brown people are already over-surveilled and over-policed, and it’s critical that we prevent government agencies from using this faulty technology to surveil communities of color even further,” said Pressley.

In support of the proposed legislation, more than 60 privacy, civil liberties, civil rights, investor and faith groups, including the ACLU, the Electric Frontier Foundations and others of note, addressed Elijah Cummings, chairman of the U.S. House Oversight and Reform Committee and Jim Jordan, the ranking member of the committee, urging them to prod Congress to enact a federal moratorium on the use of facial recognition for “immigration and law enforcement purposes until there can be a full debate on what, if any, uses should be permitted.”

Rep. Eddie Bernice Johnson, (D-TX), recently introduced the Promoting Fair and Effective Policing Through Research Act that, in part, would direct the National Institute of Standards and Technology to expand its investigations and standards development efforts around biases in biometric identification and facial recognition technology.

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