Facial recognition regulation: AB 2261 is a long overdue solution

The incursion of facial recognition technology in our everyday lives is already present, but we have few tools to discover or limit its use.

Source: CalMatters

Assembly Bill 2261, which I have introduced, is the long overdue solution to regulate the use of facial recognition technology by commercial, state and local public entities.

Last year, a California law enforcement officer was browsing through a social media platform and came across a missing child’s photo, posted by the National Center for Missing and Exploited Children. After taking a screenshot, the officer fed the image into facial recognition system that returned a list of online sex ads featuring the missing girl.

Criminals had been trafficking the child for weeks until her discovery and ultimate rescue. Similarly, in New York, police used facial recognition technology to apprehend an accused rapist within 24 hours of threatening a woman at knifepoint. The National Center for Missing and Exploited Children tells us that of the nearly 26,300 runaways reported in 2019, one in six were likely victims of child sex trafficking. 

In crime-fighting situations where time is of the essence, such as locating missing children, there is no question that facial recognition technology is and has been incredibly useful. Now that we are fighting COVID-19 and deploying touchless sensor technology to measure body temperatures and track individuals, facial recognition technology is again brought to the forefront. 

While this technology offers some benefits, its use also comes with serious challenges. For example, there are legitimate concerns regarding the accuracy of these systems on some racial or ethnic groups, and several studies have uncovered biases in facial recognition algorithms. There are also claims on the use of facial recognition systems by state and private entities to target immigrants and people of color, and to oppress religious minorities and discourage free expression. 

Clearly, the incursion of facial recognition technology in our everyday lives is already present, but we have few tools to discover or limit its use. Why? Because there is no comprehensive facial recognition technology regulation in place.

In other words, there is a legal and regulatory vacuum, which leaves the door open to further abuse. Some municipalities have banned the use of facial recognition technology by public entities, but private entities remain largely unregulated. Recently, the ACLU asked 20 of the largest brick and mortar store operators if they utilize facial recognition technology. Only one affirmatively denied using it, one verified they in fact did use it for loss prevention, and the other 18 stores refused to answer the question. 

We cannot leave it to a handful of forward thinking cities to regulate in this space. Creating a checkerboard ban across the state does not fully address discrimination concerns. We must hold public and private entities equally accountable and everyone across the state should receive fundamental protections against invasive and discriminatory uses of this technology. 

Common sense dictates that we take control of the technology, rather than letting it control us. 

We should establish a framework to allow for prior notice, affirmative consent, independent testing for bias and meaningful human review, rather than allowing the algorithms to drive decisions. For government use, we should demand greater transparency and local participation and approval. As for crime-fighting investigations, search warrants and probable cause should be the basic tenets. 

Assembly Bill 2261, which I have introduced, is the long overdue solution to regulate the use of facial recognition technology by commercial, state and local public entities. 

The last time the state attempted to comprehensively regulate facial recognition technology was about 20 years ago with Senate Bill 169, which failed passage. Today, everywhere we go there seems to be a surveillance camera watching over us. Failure to take immediate, decisive action to regulate this technology will make it increasingly difficult to regulate in the future because more entities are deploying facial recognition services without limitation every day. 

Do we want to wait another two decades only to look back to this day and realize we failed, once again, to protect our individual privacy? Personally, I refuse to do so. I am not willing to sit idly by and watch the unfettered expansion of a potentially invasive technology.