The Facial Recognition Act of 2022, New Proposed Law

As law enforcement agencies worldwide are increasingly using facial recognition technology to fight crime in a variety of different ways, government agencies are simultaneously working to regulate the use of this new technology. With all this being said, “Congressman Ted W. Lieu of Los Angeles County and other House Democrats introduced the Facial Recognition Act of 2022 last week, which would place limitations and prohibitions on law enforcement use of FRT.” For context, “This comes at a time when records obtained by the Los Angeles Times show that the Los Angeles Police Department (LAPD) has used FRT at least 29,817 times since 2009.” According to a study done by the National Institute of Standards and Technology (NIST), the algorithms used in FRT falsely identified African-American and Asian faces 10 to 100 times more than white faces.”

Algorithmic bias

To this last point, criticisms that have been levied against supporters of facial recognition technology often cite both the use of such technologies by law enforcement agencies, as well as the inherent level of bias that has come to be associated with the technology under many circumstances. This being said, while there is obviously some overlap between these two issues, any federal legislation that would serve to regulate the use of facial recognition software by law enforcement agencies around the country would fail to address the algorithmic bias that often leads to the technology misidentifying the facial scans of one person for another in the first place.

To this end, software developers that create the programs and applications that law enforcement agencies rely on to perform their daily job functions must also be held accountable in instances where their products and services are linked to biased or discriminatory decisions. To illustrate this point further, NYC recently enacted Int. No. 1894-A, described as “A Local Law to amend the administrative code of the city of New York, in relation to automated employment decision tools.” Subsequently, this law will hold businesses within NYC that use algorithms to assist in hiring decisions accountable in instances where these algorithms are linked to biased decisions.

The provisions of the proposed law

With all this being said, the proposed Facial Recognition Act of 2022 would place new stipulations on a law enforcement agency within any of the nation’s 50 states that are looking to employ facial recognition technology within their respective jurisdictions. Most notably, the law would require law enforcement officers to “obtain a judge-authorized warrant before using facial recognition on any investigation. In order to obtain a warrant, a police officer must submit a written affidavit to the judge. The idea being that adding an extra step will dissuade LAPD and other officials from relying so heavily on FRT and prevent the arrest of misidentified, innocent individuals.”

What’s more, the proposed bill would also prohibit law enforcement officers from using facial recognition technology for mass surveillance purposes, as the law forbids the use of facial recognition software during public protests, and also outlaws the use of the technology in conjunction with body and dashboard cameras. Likewise, the enactment of the Facial Recognition Act of 2022 would be a complete departure from the manner in which many law enforcement agencies around the country are currently using facial recognition technology, as there have been few laws passed to date that regulate the use of FRT in a very general sense.

Roe v. Wade

On top of the concerns that many politicians and privacy advocates have raised regarding the use of FRT by law enforcement agencies, many reproductive healthcare and women’s rights advocates have highlighted the adverse effects of this technology. Due to the fact that many states around the U.S. have effectively chosen to outlaw the practice of abortion months after the overturning of Roe v. Wade, the use of FRT by the nation’s police forces for mass surveillance purposes is increasingly becoming a topic of concern. For example, a woman that resides in a state that has made abortion illegal should theoretically still be able to seek the same services within another state where the practice is still legal. Nevertheless, the ability of FRT to identify the personal identity of an individual within seconds has the potential to put the lives of individuals at risk if left unchecked.

While there are merits to both sides of the argument with respect to the use of facial recognition technology by law enforcement agencies, this technology must ultimately be regulated to some degree, as individuals have a right to protect themselves against invasions of privacy, even before taking the issue of algorithmic bias into consideration. For this reason, while it remains to be seen whether or not the Facial Recognition Act of 2022 will be passed into law, the U.S. federal government will undoubtedly have to address the use of FRT by law enforcement agencies at some point in the near future.