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Facial recognition bill would ban use by federal law enforcement

The bill would also make federal funding for state and local law enforcement contingent on the enactment of similar bans.

Sens. Ed Markey, D-Mass., and Jeff Merkley, D-Ore., introduced legislation Thursday that seeks to ban the use of facial recognition and other biometric surveillance technology by federal law enforcement agencies.

The legislation would also make federal funding for state and local law enforcement contingent on the enactment of similar bans.

The Facial Recognition and Biometric Technology Moratorium Act, is supported by Reps. Ayanna Pressley, D-Mass., and Pramila Jayapal, D-Wash. It comes at a time of intense scrutiny of policing and surveillance tools, and widespread protests after the killing of George Floyd in Minneapolis police custody in late May.

“Facial recognition technology doesn’t just pose a grave threat to our privacy, it physically endangers Black Americans and other minority populations in our country,” Markey said in a statement. “As we work to dismantle the systematic racism that permeates every part of our society, we can’t ignore the harms that these technologies present."

Prohibiting government use of the surveillance technology is the "only responsible thing to do," he added.

The bill would make it unlawful for any federal agency or official to “acquire, possess, access or use” biometric surveillance technology in the United States. It would also prohibit the use of federal funds to purchase such technology.

The bill states that this type of surveillance technology could only be used if there was a federal law with a long list of provisions to ensure it was used with extreme caution. Any such federal law would need to stipulate standards for the use, access and retention of the data collected from biometric surveillance systems; standards for accuracy rates by gender, skin color and age; rigorous protections for due process, privacy, free speech, and racial, gender and religious equity; and mechanisms to ensure compliance with the act.

It also stipulates that local or state governments would not be eligible to receive federal financial assistance under the Edward Byrne Memorial Justice Assistance Grant program, which funds police training, equipment and supplies, without complying with a similar law or policy.

The introduction of the bill follows years of calls from civil liberties and human rights groups, including the American Civil Liberties Union and Amnesty International for an outright ban of the surveillance technology over concerns that it exacerbates human biases and infringes on people’s constitutional freedoms.

“Facial recognition is a uniquely dangerous form of surveillance," said Evan Greer, deputy director of digital rights advocacy group Fight For The Future in a statement endorsing the bill. "This is not just some Orwellian technology of the future –– it’s being used by law enforcement agencies across the country right now, and doing harm to communities right now."

The ACLU also endorsed the bill.

“Congress should pass this bill,” said Neema Singh Guliani, the ACLU's senior legislative counsel. "It’s clear that this surveillance technology has been deployed without legislative approval or public debate about whether we should be using it at all. It’s time we put the brakes on the use of this technology and stopped funding invasive and discriminatory surveillance structures.”

On Wednesday, it was revealed that a man in Michigan, Robert Williams, spent over a day in police custody in January after facial recognition software mistakenly matched his driver’s license photo to surveillance video of someone shoplifting. The ACLU said in a complaint that the case proved both that the “technology is flawed and that investigators are not competent in making use of such technology.”

Earlier this month, three of America’s largest technology companies — IBM, Amazon and Microsoft — announced sweeping restrictions on their sale of facial recognition tools, and called for federal regulation of the technology.

Merkley introduced a similar bill in February, along with Sen. Cory Booker, D-N.J., that sought a moratorium on the federal government’s use of facial recognition, although that bill had broad exceptions, allowing for law enforcement to use the technology with court warrants.