Tech giants are starting to revisit their facial recognition programs, after years of warnings that the surveillance tools posed threats to civil liberties and were riddled with racial and gender bias. But lawmakers and privacy advocates argue that the companies' actions aren't enough to address the concerns surrounding facial recognition.
Last week, IBM announced that it's leaving the facial recognition market, while Microsoft said it would stop selling facial recognition to police departments until there are federal regulations on the technology. Amazon's moratorium on its facial recognition tool, Rekognition, has a hard deadline: The company will wait one year before it resumes selling surveillance tools to police departments.
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"We hope this one-year moratorium might give Congress enough time to implement appropriate rules, and we stand ready to help if requested," Amazon said.
Surveillance technology like facial recognition is being scrutinized among calls for law enforcement reform, and protests against police brutality, spurred by the May 25 death of George Floyd. Tech companies are responding by acknowledging the ethical concerns, including racial bias, associated with facial recognition, but critics say the firms are taking only half measures to address them.
For starters, Amazon's call to pass legislation during its one-year moratorium presents an unrealistic timeline for lawmakers, especially during an election year, members of Congress have said. Given that lawmakers have proposed several laws on facial recognition in the last year without any progress, it's unlikely any meaningful legislation will pass by June 2021.
"One year, in my opinion, would be lightning fast. Getting people to just acknowledge it was a problem was a big deal," said Rep. Jimmy Gomez, a Democrat from California. "To get a solution within a year would be extremely tough."
Gomez was among several members of Congress whose image was mistaken by Rekognition for a criminal mugshot during an American Civil Liberties Union study on the facial recognition tool, conducted two years ago.
Skeptics also raise concerns that this sudden push for regulation from tech companies is a way to guide legislation that would benefit the companies. Both Amazon and Microsoft have offered their help in drafting potential legislation for facial recognition.
"To get a solution within a year would be extremely tough." Rep. Jimmy Gomez
In Washington state, a facial recognition bill that passed in April had been written and sponsored by a Microsoft employee, while Amazon founder Jeff Bezos said his company is working on its own legislation to propose to members of Congress.
"It's likely Congress will impose some limitations on police use of facial recognition soon," Evan Greer, executive director of digital rights group Fight for the Future, said in a statement. "They've been calling for the federal government to 'regulate' facial recognition, because they want their corporate lawyers to help write the legislation, to ensure that it's friendly to their surveillance capitalist business model."
What a facial recognition bill could look like in 2021
Lawmakers across the board agree that one year isn't enough time to pass effective legislation on a complicated topic like facial recognition, but there's still a belief that something needs to be done.
The momentum for passing regulations on facial recognition has never been stronger. But so far, pushes to ban the technology have resulted only in piecemeal proposals, like the Justice in Policing Act, which would prohibit the tech's use in body cameras, but wouldn't ban other uses.
Sen. Chris Coons, a Democrat from Delaware, has proposed his own facial recognition legislation, which would require federal agencies to get a warrant before being able to use the technology for constant surveillance, but not for identification purposes, which is what facial recognition is mostly used for.
"Right now there is no regulation or accountability when it comes to how facial recognition is used by the federal government. That is unsustainable," Coons said. "I believe that Congress must work on a bipartisan basis to set appropriate guardrails around this technology to ensure that it is deployed both without bias and without infringing on our fundamental Fourth Amendment privacy rights."
The senator didn't comment on whether he'd be working on new legislation over the next year to address concerns missed in the initial proposal.
Rep. Yvette Clarke, a Democrat from New York, proposed legislation to ban facial recognition from public housing last July, and agrees that Amazon's moratorium doesn't give Congress much to work with.
"I don't think we can solve all the issues at hand with this specific technology in a year because it's not sufficient enough timing to create solutions to this technology's impact on communities of color who experience racial profiling and policing at astronomical rates," Clarke said. "As a result, it's clear that we need to ensure that any effective legislation on facial recognition includes a ban for law enforcement agencies."
Some lawmakers are looking at passing regulations that would extend the moratorium, not just on Amazon's Rekognition, but on the entire facial recognition industry.
Sen. Jeff Merkley, a Democrat from Oregon, is pushing for Congress to pass the Ethical Use of Facial Recognition Act, which he introduced in February and which would put a moratorium on federal use of facial recognition that would expire only after Congress passed guardrails for the technology.
"Regardless of Amazon's proposed timeline, it's important that we take whatever time is necessary to get this right," Merkley said.
While the federal moratorium would prevent agencies like the FBI and ICE from using facial recognition, it wouldn't affect the hundreds of local police departments that could be using the surveillance tools. Other lawmakers are looking at the moratorium as an opportunity to reform police surveillance.
"We need to put a moratorium on the use at the federal level and the local level. That way we can have time to push forward legislation that creates standards and a process of how this technology could be reviewed," Gomez said. "We've got to have a moratorium in law, not one that's based on the whims of corporations."
The legislation is still being drafted, and is seeking bipartisan support among members of Congress, Gomez said. Facial recognition is one of the rare issues that Democrats and Republicans have agreed on.
Ideally, the moratorium would last for two years, Gomez said. He's also aiming for the ban to start in January 2021, following the election, so a new Congress could tackle the issue.
Other lawmakers are calling for Amazon to go further than a moratorium. Sen. Ed Markey, a Democrat from Massachusetts, has criticized Amazon and its facial recognition tools being used by police over the last two years.
"Their products have the alarming potential to infringe on Americans' privacy rights in ways that we would have thought unimaginable not long ago," Markey said in a statement. "Pressing pause on the use of this technology by law enforcement is a positive step, but what Amazon should really do is a complete about-face and get out of the business of dangerous surveillance altogether."
His office didn't respond to requests for comment on whether he'd support or propose legislation to ban facial recognition entirely.
Why it could take so long to pass facial recognition laws
Creating laws to govern technology can be a complicated process because of how quickly software advances. Lawmakers don't want to pass legislation that'll become irrelevant as soon as the technology changes.
Laws like the Children's Online Privacy Protection Act, passed in 1998, and the Communications Decency Act, passed in 1996, still apply to technology today, though there've been calls by tech companies and presidential candidates to update them.
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With facial recognition, there's a lot to consider. Lawmakers said they want to avoid broad language that would prevent the use of facial recognition for innocuous purposes like unlocking a phone, for example.
In May 2019, San Francisco became the first city to ban facial recognition for government use, but months later it had to revise the policy so that city workers could use their iPhones' Face ID.
Any proposed legislation also shouldn't just address facial recognition based on its accuracy rate, lawmakers said. A major argument against facial recognition is that its algorithms have racial and gender bias, often mistaking black women for men, for example, according to the Gender Shades study from researchers Joy Buolamwini and Timnit Gebru in 2018.
Those mistakes can have dire consequences if police are making arrests based on faulty technology.
Some members of Congress are worried about what happens when facial recognition becomes more accurate.
If the technology is ever perfected, with the ability to identify anyone without mistakes, then it raises issues of privacy and surveillance in public spaces. Protesters already have concerns that their images will be used with facial recognition to identify them, which police did for demonstrations in Baltimore and Oakland.
"I still want to live in a world where I can walk down the street and nobody knows who I am," Gomez said. "We all don't want surveillance in our communities and neighborhoods, especially without warrants and protections and checks to ensure that technology isn't abusing people's civil liberties and rights."
Legislation would need to stand the test of time, and that would mean writing it for a world where facial recognition doesn't make mistakes — and also evolves into other uses like gait recognition or emotion recognition.
Amazon has talked about how its Rekognition tool was capable of detecting emotions like fear and anger, despite the fact that emotion recognition carries its own racial bias. A 2018 study found that emotion recognition algorithms regularly considered black people to look angrier than white people, even when they were smiling in the photos.
No facial recognition bills proposed so far have accounted for advances in the technology. Legislation like the Algorithmic Accountability Act, proposed by Sen. Corey Booker, a Democrat from New Jersey, and Sen. Ron Wyden, a Democrat from Oregon, looks to address AI bias as a whole, rather than focusing specifically on facial recognition.
"Amazon is right that facial recognition technology desperately needs more oversight and regulation from Congress to prevent flawed products like Rekognition from violating Americans' rights. But putting an arbitrary time limit on its delay is a transparent attempt to pass the buck," Wyden said. "Amazon should take responsibility for its actions and commit not to sell any surveillance product unless it is accountable, transparent and can pass strict testing for accuracy — including when it comes to black, Hispanic, indigenous and Asian faces."
Chances for a full ban
Several advocacy groups have called for a complete ban on facial recognition, but few lawmakers support abolishing the technology. They want to make sure any laws passed don't stifle innovation.
Lawmakers see the technology being used for general purposes, like boarding cruise ships or ordering food, and they don't want to hold back those advances. Rekognition, for example, is used by school photographers to identify children in kindergarten photos for parents.
"Everyone who has a smartphone has probably discovered that there is already embedded facial recognition technology that can identify photos based on who is in them. This shows how widespread this technology already is," Merkley said. "We really need to focus on its use by businesses and government in ways that track individuals around the world, create a database of their movements and compromise their privacy freedom."
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But those benefits don't outweigh the harms of the technology, privacy advocates said.
"Face recognition technology gives governments the unprecedented power to spy on us wherever we go. It fuels police abuse. This surveillance technology must be stopped," Nicole Ozer, technology and civil liberties director with the ACLU of Northern California, said in a statement.
Amazon's one-year moratorium gives the company time for concerns about police surveillance to fizzle out, said Sarah E. Igo, a professor of history who studies privacy at Vanderbilt University. That's typically how pushes against surveillance measures die, she added.
One year may not be enough time for members of Congress to pass effective legislation on facial recognition, but it's enough for public concerns around the technology to dwindle.
"The picture is not that rosy when you look at new technologies. They don't typically get stopped completely," Igo said. "One thing history might tell us: Only if the pressure keeps on will things happen."
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