By Brendan Dalton

This past February, Massachusetts State Senator Cynthia Creem, D-Newton, proposed a bill that would make it illegal for any state entity to “acquire, possess, access, or use any biometric surveillance system” until laws are enacted regarding its use.  This bill will not affect how state entities may use DNA, fingerprints, or palm prints, nor will it affect how federal agencies use facial recognition technology.

Facial Recognition and Biometric Surveillance Systems

A facial recognition system is a technology that is capable of identifying or verifying a person from a digital image or a video frame from a source.  Every person’s face has many “nodal points” which distinguishes them from another, and each human face has approximately 80 nodal points.  Examples of the types of nodal points that are measured by facial recognition software include the distance between the eyes, the width of the nose, depth of the eye sockets, the shape of the cheekbones, and the length of the jawline.  Generally, these distinguishing characteristics seen in an image or frame is then compared with images of faces within a database to identify a person.  A 2016 Georgetown Law School study found that without any citizens consent the images of more than 117 million Americans, which is more than one-third of the entire U.S. population, can be found in facial-recognition databases that are used by law enforcement across the country.

Benefits of Facial Recognition Software

Many law enforcement leaders find facial recognition software to be an efficient and reliable way to identify a suspect.  Other biometric identifiers, such as DNA or fingerprints, are much more dangerous to obtain as they often require law enforcement agents to come into close proximity with the suspects.  Facial Recognition software allows a law enforcement agency to enter a photograph of a recently arrested person into its databases to identify the person and see if they are wanted for any other offenses.  It can also help officers who are monitoring events with large amounts of people attending in order to identify wanted criminals.  In addition, the software has also been used to locate perpetrators of identify fraud.  In recent years in Massachusetts, facial recognition software proved its usefulness when the technology played an integral role in identifying the Boston Marathon bombers in 2013 as well as Olivia Ambrose’s kidnapping suspect this past January.

Concerns with Facial Recognition Technology

Despite its benefits, critics of facial recognition software believe that the technology is unproven and implementing it for use across the Commonwealth and the country would be dangerous to citizens’ civil rights.  One concern is that facial recognition software is not one hundred percent accurate.  For example, the software has difficulty recognizing faces that have aged, since distinguishing nodal points may change.  Therefore the software would have difficulty matching the current image of a person with an older image of the person that is within the database, or worse match the current image with the wrong person.  Due to the possibility of the software producing false positives, this could lead to law enforcement agents conducting investigations or questioning innocent civilians solely because the software misidentified them.

Furthermore, it has been shown in recent tests by the Massachusetts Institute of Technology’s Media Lab that facial recognition software has had difficulty identifying African-Americans and other minority groups.  This study also found that the software is less accurate when attempting to identify females, particularly darker-skinned women. Kade Crockford, the director of the Technology for Liberty at the American Civil Liberties Union of Massachusetts, believes that the unchecked biases that are within the FRS could worsen the issue of racial profiling.

Moreover, critics are also concerned that the vast databases that law enforcement agencies maintain across the country lack oversight from any governing body.  Due to this lack of oversight, there is a real possibility that law enforcement could use the software for nefarious reasons, such as using FRS to identify and harass citizens partaking in constitutionally protected acts, such as protesting.

What’s Next

The proposed bill has bipartisan support within the Massachusetts Legislature, which bodes well for the chances of it being enacted into law.  If the bill is approved, Massachusetts would become the first state to prohibit the use of facial-recognition software by law enforcement and other state agencies.

Student Bio: Brendan Dalton is a second-year law student at Suffolk University Law School.  He is currently a staff member of the Journal of High Technology Law.  Brendan holds a Bachelor of Arts in Political Science from the University of Massachusetts Amherst with a minor in Economics.

Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.

 

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