Shield Your Eyes; The Ubiquity of Facial Recognition

By: Matthew Bodi

The use of facial recognition technology by government agencies, police departments and commercial businesses has been increasing in the United States and the lack of oversight or regulation of this developing technology is troubling to both Republicans and Democrats alike. On May 22, and June 4 the Congressional Committee on Oversight and Reform held hearings regarding the use and need for oversight of facial recognition technology as used by commercial entities and the government.[1] At that hearing a number of a experts testified about the increasing need for federal legislation regulating the use of facial recognition technology.[2] A primary fear being that the rapid development of this technology could mean that it may become ubiquitous before the courts have an opportunity to rule on the constitutionality of its use by federal agencies.[3]

The most unsettling use of facial recognition has been by the Chinese government to monitor its Uighur citizens, a Muslim minority in its western provinces, as part of its efforts at repressing and reeducating them.[4] The Chinese government had been using this technology to distinguish its Uighur population from its majority Han population in an effort to monitor the Uighur’s movements and activities, citing security concerns as the justification.[5]Between several hundred thousand and one million Uighurs have been placed in internment camps[6], and this technology is being used as a powerful tool in a mass surveillance program aimed at monitoring as many of the non-interned 24 million Uighur as possible.[7]

In the United States some cities have banned the use of facial recognition technology from being used by their police force, while others police departments have used it to solve otherwise hard to crack cases.[8] Beyond concerns of privacy invasion, studies have consistently shown a bias in the technology, as its accuracy significantly decreases when it is used on women or on people of color.[9] As municipalities decide their policy on this emerging technology, the federal government has so far not decided on any legislation regulating use of this technology by Federal agencies. This was showcased recently when it was discovered ICE had used facial recognition software to mine millions of driver’s license photos, in part to find undocumented immigrants who had legally obtained driver’s licenses.[10]

Since those hearings in May and June, Congress now has four different bills before it to consider in deciding how to regulate the use of this powerful and rapidly developing technology.[11] One in particular which has been reported to soon be introduced by Rep. Elijah Cummings (D-MD) and Rep. Jim Jordan (R-OH) illustrates the bipartisan concern for the potential misuse of this technology.[12] Whatever bill is ultimately put to vote, it is important action is taken. Considering the proven inaccuracies in the facial recognition technology employed within the United States and its deeply disturbing use as a tool of authoritarian repression in China, it is incredibly important that Congress come together and place limits on its use before it is put to use for more invasive purposes.

[1] Facial Recognition Technology (Part I): Its Impact on Our Civil Rights and Liberties: Hearing before the H. Comm. on Oversight and Reform, 116th Cong. (2019); Facial Recognition Technology (Part II): Ensuring Transparency in Government Use: Hearing before the H. Comm. on Oversight and Reform, 116th Cong. (2019).

[2] Id.

[3] Facial Recognition Technology (Part I): Its Impact on Our Civil Rights and Liberties, supra note 1. (statement of Andrew G. Ferguson, Professor of Law, University of the District of Columbia, David A. Clarke School of Law).

[4] Paul Mozur, One Month, 500,000 Face Scans: How China Is Using A.I. to Profile a Minority, N.Y. Times (April 14, 2019) https://www.nytimes.com/2019/04/14/technology/china-surveillance-artificial-intelligence-racial-profiling.html?register=google&auth=register-google; See also Chris Buckley, China Is Detaining Muslims in Vast Numbers. The Goal: ‘Transformation’, N.Y. Times (September 8, 2018), https://www.nytimes.com/2018/09/08/world/asia/china-uighur-muslim-detention-camp.html, Corrected as per R.18.2.2(c)

[5] Mozur, supra note 4.

[6] Buckley, supra note 4.

[7] Mozur, supra note 4.

[8] Compare Corinne Reichert, Facial Recognition Banned in Another City, CNet (July 17, 2019), https://www.cnet.com/news/facial-recognition-banned-in-another-city/; with Jon Schuppe, How Facial Recognition Became a Routine Policing Tool in America, NBC News (May 11, 2019), https://www.nbcnews.com/news/us-news/how-facial-recognition-became-routine-policing-tool-america-n1004251.

[9] Queenie Wong, Why Facial Recognition’s Racial Bias is So Hard to Crack, CNet, (March 27, 2019), https://www.cnet.com/news/why-facial-recognitions-racial-bias-problem-is-so-hard-to-crack/.

[10] Bill Chappel, ICE Uses Facial Recognition To Sift State Driver’s License Records, Researchers Say, NPR, (July 8, 2019), https://www.npr.org/2019/07/08/739491857/ice-uses-facial-recognition-to-sift-state-drivers-license-records-researchers-sa.

[11] Shirin Ghaffray, How Facial Recognition Became the Most Feared Technology in the US, Vox (August 9, 2019), https://www.vox.com/recode/2019/8/9/20799022/facial-recognition-law.

[12] Id.

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