Massachusetts Proposes a Moratorium on Face Recognition 

            Over the course of the last month we have introduced several panelists from About Face: The Changing Landscape of Facial Recognition. The conference featured intense discussion and debate about the merits of FRT and the problems and possibilities of regulation. One bill that is being discussed just a few miles from NUSL is H. 1538, which proposes a moratorium on face recognition and other biometric use by the governments. 

What is biometric surveillance?

            H. 1538 addresses biometric surveillance systems and defines them as “any computer software that performs face recognition or other remote biometric recognition.” Face recognition is defined in the bill as “an automated or semi-automated process that assists in identifying an individual or capturing information about an individual based on the physical characteristics of an individual’s face, or that logs characteristics of an individual’s face, head, or body to infer emotion, associations, activities, or the location of an individual.” In order to delineate what the bill hopes to prevent, and what it does not, they define “other remote biometric recognition” as systems “…based on the characteristics of an individual’s gait, voice, or other immutable characteristic…; provided…that other remote biometric recognition shall not include recognition based on DNA, fingerprints, or palm prints.” These exceptions provide government the tools necessary to use trusted investigatory techniques while the intricacies of the statutory authorization are worked out in the State House.

What is a moratorium? Is it a ban?

            The moratorium in H. 1538 comes in the form of a presumption of illegality where “…it shall be unlawful for the Commonwealth of Massachusetts…to acquire, possess, access, or use any biometric surveillance system, or acquire, possess, access or use information derived from a biometric surveillance system operated by another entity.” This would effectively eliminate the use of FRT and other biometrics unless there is “express statutory authorization.” As we discussed in Director Crockford’s introduction, right now there is no statutory authorization or even an oversight mechanism for what we know has been longstanding, widespread use of FRT in Massachusetts. 

            Another key element of the bill is the limit on admitting biometric evidence like FRT in court. Although cases in which FRT have been used have not made it up through the appellate process with much frequency, we know that police have been using it for almost 13 years. Banning the use of evidence in court impacts the close partners of the police, District Attorneys. We know that DA’s and police have a symbiotic relationship and by disallowing the use of biometric evidence, the goal is to further entrench the ban on police use by making it clear that such use will be of no help to them in achieving their stated goal of catching criminals. 

How will we know the moratorium is working?

            This question is difficult to answer but the bill attempts to uncover the answer in two ways: introducing a private right of action and providing specific requirements for statutory authorization. The private right of action will help citizens who feel their rights have been violated by biometric surveillance by allowing them to pursue remedies in court, including statutory damages. The private right of action also makes a violation an injury by default so the person would not need to demonstrate actual harm to be able to pursue their case. Adding in such language is key to eliminating the procedural methods that have been used to dismiss cases in other states.

            The obvious problem still exists though and that is people may not ever be able to detect biometric surveillance in the wild. The statutory authorization requirements would provide a great bounty of information about biometric surveillance uses though. Ultimately, the best way to measure the success of the moratorium is how quickly the legislature is able to act to implement requirements like providing a list of entities who are permitted to use biometric surveillance, standards for use and management of these systems, extensive auditing by independent third-parties, strong protections for due process, privacy, and free speech, and, finally, some mechanism to ensure that the statutory authorization is followed and if it is not, a method of punishment.

Did San Francisco ban face recognition, too?

            Yes, they did. Their Board of Supervisors voted to ban the use of FRT by city agencies, including the police. If you are keeping score at home, that is the #11 city (Silicon Valley is #2) for STEM jobs in the United States (based on concentration) telling their local government that they would prefer if the use of FRT stopped immediately. Boston came in at #10 on the list with 10.4% (compared to 10.2% for SF) of their workforce in STEM positions, so we have, at a minimum, an equivalent STEM workforce. As Joy Buolamwini astutely put it, “the city where the sausage is made does not want to eat the sausage.” Maybe we shouldn’t eat it in New England, either.

            Now it is Massachusetts’ turn to join the charge in regulating the use of FRT.  Our panelist, Clare Garvie, recently eviscerated the call from many commentators to slow the speed of regulation to save innovation. Not only was her work instrumental in the NY Times calling for support of their own face recognition ban, but she will be testifying tomorrow at the House Oversight Committee. Massachusetts residents cannot afford for the use of FRT to continue unfettered while civil liberties are destroyed.

            You can follow the progress and view the full text of the bill here. We will update if the language is revised or it continues to move through the two houses.