Massachusetts Considers Bill to Limit Facial Recognition

If successful, the proposal by state Sen. Cynthia Creem would place restrictions on state law enforcement agencies with regards to the acquisition, possession or use of biometric surveillance.

by Christian M. Wade, The Eagle-Tribune / February 11, 2019
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(TNS) — Facial-recognition systems are getting more use to nab criminal suspects, thwart security threats and prevent fraud, but the technology is fueling debate over privacy.

On Beacon Hill, a bipartisan group of lawmakers wants to put the brakes on use of facial recognition and other biometric systems by the state and local law enforcement until there are rules for its use.

The proposal, filed by Sen. Cynthia Creem, D-Newton, would make it illegal for any state entity to "acquire, possess, access, or use any biometric surveillance system." The use of DNA, fingerprints or palm prints by state agencies and law enforcement would be allowed. Nor would the ban affect the use of facial recognition by federal agencies.

If approved, the measure would make Massachusetts the first state to prohibit the use of facial-recognition surveillance by law enforcement and other state agencies.

"Biometric surveillance is an important and powerful tool that can be used to protect us by those in law enforcement and homeland security," said Senate Minority Leader Bruce Tarr, R-Gloucester, a co-sponsor of the bill. "Yet, its use must be properly governed, and the information it generates must be properly secured, so that what is gathered to protect us can’t be abused to harm us."

Another filed by House Majority Leader Ronald Mariano, D-Quincy, would include biometric data among the types of information that private entities must protect under the state's data security law.

Entities that collect such data would required to disclose to customers if the information is hacked, lost or stolen, under the proposal.

Mariano's bill, which is backed by 45 lawmakers, wouldn't ban the use of the technology, but advocates say it would protect the use of the information by third parties.

117M AMERICANS IN DATABASES

Facial recognition is regarded as a quick, reliable way to identify someone from a surveillance system. Law enforcement says the technology makes it easier to acquire information about potential suspects and threats than other biometric identifiers, such as fingerprints, which require close proximity and physical contact to obtain.

Each face has some 80 unique "nodal points" — across the eyes, nose, cheek and mouth — distinguishing one person from another. Facial-recognition software matches real-time images to previous images by comparing those points and other features, similar to the way fingerprints are analyzed.

The federal Department of Homeland Security scans faces of foreign travelers at many of the country’s largest airports, and it plans to expand its surveillance to every traveler flying overseas.

More than 117 million Americans — more than one-third of the country — can be found in the vast facial-recognition databases used by law enforcement, according to a 2016 Georgetown Law School study.

Critics say the systems are unproven and the technology isn't ready for widespread use.

For one, faces age over time and change because of circumstances, and they aren’t always unique. Recent tests of facial-recognition systems have shown flaws, particularly when it comes to identifying minorities and people with darker skin.

"These technologies are not ready for prime time," said Kade Crockford, director of the Technology for Liberty Program at the American Civil Liberties Union of Massachusetts, which backs both proposals on Beacon Hill. "Even if it worked perfectly, it facilitates a form of government control that is inconsistent with a free, open and democratic society."

Last year, a study by the Massachusetts Institute of Technology’s Media Lab found three popular facial-recognition systems vary in accuracy based on gender and race. The software performed worse when identifying gender for females and darker-skinned females, according to researchers.

Crockford said unchecked biases in facial-recognition systems could perpetuate racial profiling.

'IT'S A CIVIL RIGHTS ISSUE'

It's unclear how widespread use of the technology is in Massachusetts. Some law enforcement agencies are wary of discussing it.

State Police are using face surveillance technology, Crockford said, by comparing images of suspects to the state driver’s license database and mugshots.

The Registry of Motor Vehicles has used facial recognition since 2006 "to identify and prevent instances of attempted identify fraud," said RMV spokeswoman Judith Riley.

The MBTA's Transit Police are not currently using the technology to identify suspects at the T's commuter rail, subway and bus stations, according to spokesman Joe Pesaturo.

Mark Leahy, executive director of the Massachusetts Association of Police Chiefs, points to numerous examples of criminals who’ve been captured with the assistance of surveillance and facial-recognition systems, including the 2013 Boston Marathon bombers.

Last month, Boston police used video surveillance footage from the State Street station to identify a suspect in the kidnapping of 23-year-old Olivia Ambrose.

"There's a lot of positive aspects to it," Leahy said. "I think some of the people who are so concerned about privacy rights, if they had a family member kidnapped or missing, they would appreciate the benefits of this technology."

Rep. Paul Tucker, D-Salem, a former police chief, said he wants the state to establish guidelines for use of the technology, but he doesn't support a ban.

"That would tie the hands of law enforcement in a way that would be counterproductive," he said. "The technology is evolving, and we need to make sure the law keeps pace, but a moratorium isn't the answer."

But Rep. Lenny Mirra, R-West Newbury, said he supports a temporary ban until the state comes up with regulations.

"The law really hasn't caught up with the technology," he said. "It's a civil rights issue. People are unaware that they're being tracked and recognized in this manner."

©2019 The Eagle-Tribune (North Andover, Mass.). Distributed by Tribune Content Agency, LLC.

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