By: Yasmin Hayre
The extent of your interaction with one of the most powerful surveillance tools in technology today likely starts and stops with you unlocking your iPhone. Coined “Face ID” on your phone, facial recognition software has become increasingly controversial as concerns build with how law enforcement utilizes the technology and the lack of corresponding regulation. An investigation by the Center on Privacy & Technology at Georgetown Law noted that more than one hundred and seventeen million people – that is more than half of all American adults – are in a law enforcement face recognition network and that the use of the network by law enforcement is almost completely unregulated. Findings such as these, along with accompanying harms of the technology such as the potential racial bias in police use of the technology, have led many individuals to be concerned about the risk to individual privacy, namely, violations to their Fourth Amendment protections against unwarranted government searches. Notwithstanding these issues, facial recognition technology has repeatedly served as a valuable asset in combating crime, and thus at issue is what regulations are necessary to preserve Americans’ constitutional rights while simultaneously having this technology be an advantageous tool for law enforcement.
Facial recognition has become increasingly widespread, but dates back to as early as the 1960s. Evidently, technology of previous eras versus today has dramatically changed. Modern cutting-edge technology captured society’s attention at Super Bowl XXXV (2002) when police tested the technology to scan the large crowd for criminals. This produced major criticism from the public, however, who considered the surveillance a danger to their privacy as they were not told that their images were being taken and compared against a law enforcement database. Despite the backlash, the software continued to be utilized. In 2010, the popular social media site, Facebook, launched a well-known feature where the site automatically identifies people in photos, making it easier to tag your friends. This was met with little criticism from general Facebook users, and the technology continued to make positive waves when it confirmed the identity of Osama bin Laden after he was killed in a U.S. raid in 2011. That same year, however, facial recognition again posed privacy concerns when it was installed in airports, again capturing peoples’ images and storing them in a database for use by law enforcement without permission or any government regulation. Most recently, in 2017, Apple released the iPhone X, promoting face recognition as the new feature. “The new model of iPhone sold out almost instantly, proving that consumers now accept facial recognition as the new gold standard for security.” Thus, facial recognition made headlines in the news for being a powerful, useful technology, but one that was widely unregulated and presented civil liberty concerns for many people.
There is also a “growing body of evidence that suggests law enforcement’s use of face recognition technology is having a disparate impact on communities of color, potentially exacerbating and entrenching existing policing disparities.” This year, in 2020, after Black Lives Matter police-brutality protests in June, the first known case of a Black individual “being wrongfully arrested based on a flawed match from a facial recognition algorithm” exacerbated the nationwide debate about racism in law enforcement. This prompted Amazon, IBM, and Microsoft to completely stop or temporarily pause selling the technology to law enforcement and led millions of people across the country to protest the racial and discriminatory bias used by law enforcement to “surveil communities and identify people for prosecution.” These concerns have prompted lawmakers at the federal, state, and local levels to introduce a variety of proposals to regulate facial recognition technology. Such regulation swept across the United States when San Francisco, Oakland, and five Massachusetts communities (Somerville, Brookline, Northampton, Springfield, and Cambridge), as well as Boston, banned the use of the technology. In Massachusetts, the ACLU and the Senate are going one step further, currently contemplating an omnibus police reform bill that temporarily bans the government’s use of the technology until December 31, 2021, when a judiciary committee will make recommendations about regulating it or permanently banning it.
Evidently, facial recognition technology has pros and cons that must be weighed when deciding how to regulate the use of the software by law enforcement, while also protecting people’s privacy rights and civil liberties. There are several major advantages of facial recognition, one of which is actually law enforcement agencies’ use of the technology to uncover criminals or terrorists, like Osama Bin Laden. Additionally, the technology adds certain conveniences to society, such as the fact that manual authentication at places like airports offers a “quick, automatic, and seamless” verification. Finally, many proponents of the technology have noted that it deters crime because people are less likely to commit crimes if they know they are being watched; for example, stores have increasingly been using the technology to track shoplifters. Despite these benefits, the cons of facial recognition, including inaccuracy, racial bias, and the concern about American’s fundamental right to privacy, are much more obtrusive and concerning to everyday citizens and lawmakers.
There are three directions the future of facial recognition could go in: no regulation, some regulation, and complete banning. Moving forward, the best option is certainly some form of regulation, but the question is how much? The test lawmakers will likely have to balance is between protecting peoples’ privacy interests with the safety measures that facial recognition can provide. Foremost, the technology should be improved upon to ensure that if it is used as a tool for policing or security, the racial bias implications of the technology are resolved. As the technology currently stands, it is only acting as a “force multiplier for already flawed and unjust systems.” Additionally, as one opponent said of the technology, “innocent people don’t belong in criminal databases.” It is imperative that safeguards be put in place to ensure the accuracy of the technology. Banning the technology at this time until regulations are agreed upon and put into effect is likely the best solution, and Massachusetts may become the first state to do so. If one thing has been made apparent from the controversial technology, it is the questions it raises about the relationship between “technology, the law, and the future of police surveillance.”
Student Bio: Yasmin Hayre is currently a second-year law student at Suffolk University Law School and a Staff Member on the Journal of High Technology Law. Prior to law school, Yasmin received a Bachelor of Arts Degree in Biology and Education from Bowdoin College.
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.
