Ed Markey and Ayanna Pressley propose federal facial recognition ban

A day after the Boston City Council passed an ordinance to ban the city from using facial recognition technology, Sen. Ed Markey and Rep. Ayanna Pressley are pushing to do the same at the national level.

The two Massachusetts Democrats, along with Oregon Sen. Jeff Merkeley and Washington Rep. Pramila Jayapal, introduced legislation Thursday to prohibit federal agencies from using biometric technology, including facial recognition tools, amid evidence that most systems disproportionately misidentify darker-skinned people.

It would also withhold federal criminal justice grants from state and local governments that do not impose their own moratoriums on such technology.

Markey, a long-time privacy advocate locked in a close re-election race against Rep. Joe Kennedy III, said that he had “spent years pushing back against the proliferation of facial recognition surveillance systems.” But in the wake of an energized racial justice movement following the killing of George Floyd by police, the senator said the “moment” called for an all-out ban on its use by the government, including the FBI and other law enforcement agencies.

“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,” he 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.”

In 2018, an MIT study on the three facial recognition programs developed and sold by Microsoft, Amazon, and IBM found that dark-skinned women were misidentified nearly 35 percent of the time, compared to an error rate of less than 1 percent for white men. And a wider government study last year of programs released by nearly 100 other developers found a similar racial disparity.

“Black and brown people are already over-surveilled and over-policed, and it’s critical that we prevent government agencies from using this faulty technology to surveil communities of color even further,” Pressley said.

Following the recent protests against police brutality, Microsoft, Amazon, and IBM all announced they would not let law enforcement agencies use their programs until federal regulations are passed.

The new bill Thursday was endorsed by the American Civil Liberties Union, which has campaigned for more than a year for a ban on facial recognition, at least until Congress passes additional laws to regulate its use. In addition to privacy concerns about the unregulated use of technology that can automatically track and surveil people based on physical features, the group has highlighted several instances in which Americans were wrongly arrested based on a misidentification.

“It’s past time Congress halted the use of face recognition and stopped federal money from being used to invest in invasive and discriminatory surveillance,” Neema Singh Guliani, a lawyer for the ACLU, said in a statement Thursday. “This bill should immediately pass.”

The legislation would not preempt any “more stringent” local laws; several cities in California and Massachusetts  have already passed their own moratoriums against face surveillance technology. On Wednesday, Boston became the latest city — and second-largest behind San Francisco — to approve a ban against city officials using such programs.

However, the legislation introduced Thursday goes further than just facial recognition programs. It would also prohibit the government use of biometric recognition technologies, based on a person’s voice, gate, or “other immutable physical characteristics.” It would also prohibit the government from paying third-parties for biometric surveillance systems and give citizens an explicit right to sue if officials are found to have violated the ban, which can only be lifted by additional legislation passed by Congress.

Upon passage of the bill, state and local governments that are not “complying with a law or policy that is substantially similar” would be ineligible to receive federal money under the Edward Byrne Memorial Justice Assistance Grant Program (a tactic similar to how President Donald Trump’s administration has tried to put pressure on so-called sanctuary cities).

Law enforcement officials have said facial recognition technologies can be a useful tool for finding missing persons or identifying criminal suspects. However, several local police departments, including in Boston, have pledged not to use facial recognition until is it proven to be more reliable.

The FBI, which has its own in-house facial recognition systems, has said it “strictly governs” the use of programs and requires additional human review before any action is taken. At the same time, in congressional testimony last year, the agency noted that it has “no authority to set or enforce accuracy standards” of separate facial recognition technology operated by partner agencies.

Merkley, the co-sponsor of the Senate version of the bill with Markey, said the government shouldn’t be operating such technology “until we have confidence that it doesn’t exacerbate racism and violate the privacy of American citizens.”

“Between the risks of sliding into a surveillance state we can’t escape from and the dangers of perpetuating discrimination, this technology is not ready for prime time,” he said.

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