Senator Jeff Merkley (D-OR) and Senator Cory Booker (D-NJ) proposed the Ethical Use of Facial Recognition Act (S 3284, 116th Congress) to set a moratorium on federal use of facial recognition technology until Congress enacts a new statute intended to regulate facial recognition technology.
A new bipartisan commission, established by the bill, will outline guidelines for legislation after having studied the social impacts of facial recognition technology. Of the commission’s thirteen members, at least seven must represent groups negatively impacted by the technology, like “communities of color, activists, and immigrants,” and at least one each must represent law and immigration enforcement officials and privacy and technology experts. Members will be selected in equal number by majority and minority leaders of the Senate and the House of Representatives, and its chair will be appointed by the President.
The commission has eighteen months to report to Congress on “guidelines and limitations” for the use of facial recognition technology in the US, recommendations for implementing those guidelines, and any minority views within the commission. Guidelines will need to create a framework that prevents “a constant state of surveillance,” biases in facial recognition performance, disproportionate impacts on vulnerable groups, limitations on privacy, infringement of free speech, and violations of the due process. However, the bill specifically requires that those guidelines do not impede law enforcement agents from tracking down “missing and exploited children and trafficked individuals.”
The committee will also need to determine when and how it is appropriate for the government to use facial recognition technology without a warrant; how commercial entities will preserve individual rights over one’s image and the data produced; and when individuals are to be allowed to opt in and out of facial recognition use. The guidelines should also outline safeguards and remedies to facial recognition abuse or misuse.
Within 90 days of the submission of the report, Congress must prepare legislation to implement the committee’s proposal. The bill outlines a process to ensure that proposed legislation is reviewed and voted on in a timely manner by Congress.
Until that legislation is passed, no government officials or contractors can set up cameras for facial recognition use, nor access information or identify individuals in the US via facial recognition, unless those officials have acquired a warrant. Civil remedies can be requested for any violation. Additionally, states cannot employ federal funds to acquire facial recognition software, services, or images,like the services that Clearview AI or Amazon’s Rekognition have actively marketed to local law enforcement agencies.
The bill reflects concerns on both sides of the aisle about the widespread and unregulated use of facial recognition. “It really is not ready for primetime — it can be used in positive ways … but also severely impacts the civil liberties and rights of individuals," said Representative Carolyn Maloney (D-NY-14), Chair of the House Oversight and Reform Committee. The technology has higher error rates in identifying women and minorities, with the potential of reinforcing profiling and unduly targeting minorities and immigrants.
A handful of local governments have responded to these issues by banning the use of facial recognition technology. The current bill tries to take a middle ground, temporary halting facial recognition deployment, until legal safeguards are in place, a process that the bill tries to accelerate. "While we're trying to figure out ... what's all happening [with facial recognition technology], let's just not expand it," commented Representative Jim Jordan (R-OH-4) to The Hill.
Facial recognition technology is currently being used by the Federal Bureau of Investigation (FBI), Immigration and Custom Enforcement (ICE), and the Transport Security Administration (TSA); a moratorium would stop most of those uses. To some commentators, a ban risks overregulating a technology that can lower the cost of security. They suggest focusing efforts on improving the technology accuracy rates, instead. Others argue that the bill does not go far enough, as it does not limit commercial use and does not retroactively target current facial recognition use by the government.