​In “A Scanner Darkly,” a 2006 film based on a Philip K. Dick novel, Keanu Reeves plays a government undercover agent who must wear a “scramble suit” – a cloak that constantly alters his appearance and voice to avoid having his cover blown by ubiquitous facial recognition surveillance.
 
At the time, the phrase “ubiquitous facial recognition surveillance” was still science fiction.
 
Such surveillance now exists throughout much of the world, from Moscow, to London, to Beijing. Scramble suits do not yet exist, and sunglasses and masks won’t defeat facial recognition software (although “universal perturbation” masks sold on the internet purport to defeat facial tracking).
 
Now that companies like Clearview AI have reduced human faces to the equivalent of personal ID cards, the proliferation of cameras linked to robust facial recognition software has become a privacy nightmare. A year ago, PPSA reported on a technology industry presentation that showed how stationary cameras could follow a man, track his movements, locate people he knows, and compare all that to other data to map his social networks. Facial recognition doesn’t just show where you went and what you did: it can be a form of “social network analysis,” mapping networks of people associated by friendship, work, romance, politics, and ideology.
 
Nowhere is this capability more robust than in the People’s Republic of China, where the surveillance state has reached a level of sophistication worthy of the overused sobriquet “Orwellian.” A comprehensive net of data from a person’s devices, posts, searches, movements, and contacts tells the government of China all it needs to know about any one of 1.3 billion individuals.
 
That is why so many civil libertarians are alarmed by the responses to an ACLU Freedom of Information (FOIA) lawsuit. The Washington Post reports that government documents released in response to that FOIA lawsuit show that “FBI and Defense Department officials worked with academic researchers to refine artificial-intelligence techniques that could help in the identification or tracking of Americans without their awareness or consent.”
 
The Intelligence Advanced Research Projects agency, a research arm of the intelligence community, aimed in 2019 to increase the power of facial recognition, “scaling to support millions of subjects.” Included in this is the ability to identify faces from oblique angles, even from a half-mile away.
 
The Washington Post reports that dozens of volunteers were monitored within simulated real-world scenarios – a subway station, a hospital, a school, and an outdoor market. The faces and identities of the volunteers were captured in thousands of surveillance videos and images, some of them captured by drone. The result is an improved facial recognition search tool called Horus, which has since been offered to at least six federal agencies. An audit by the Government Accountability Office found in 2021 that 20 federal agencies, including the U.S. Post Office and the Fish and Wildlife Service, use some form of facial recognition technology.
 
In short, our government is aggressively researching facial recognition tools that are already used by the Russian and Chinese governments to conduct the mass surveillance of their peoples.
 
Nathan Wessler, deputy director of the ACLU, said that the regular use of this form of mass surveillance in ordinary scenarios would be a “nightmare scenario” that “could give the government the ability to pervasively track as many people as they want for as long as they want.”
 
As we’ve said before, one does not have to infer a malevolent intention by the government to worry about its actions. Many agency officials are desperate to catch bad guys and keep us safe. But they are nevertheless assembling, piece-by-piece, the elements of a comprehensive surveillance state.

​Facial recognition technology has proven to be useful but fallible. It relies on probabilities, not certainties, algorithms measuring the angle of a nose or the tilt of an eyebrow. It has a higher chance of misidentifying women and people of color. And in the hands of law enforcement, it can be a dangerous tool for mass surveillance and wrongful arrest.
 
It should come as no surprise, then, that police mistakenly arrested yet another man using facial recognition technology. Randall Reid, a Black man in Georgia, was recently arrested and held for a week by police for allegedly stealing $10,000 of Chanel and Louis Vuitton handbags in Louisiana. Reid was traveling to a Thanksgiving dinner with his mother when he was arrested three states and seven hours away from the scene of the crime.
 
Despite Reid’s claim he’d never even been to Louisiana, facial recognition software identified Reid as a suspect in the theft of the luxury purses. That was all the police needed to hold him for close to a week in jail, according to The New Orleans Advocate.
 
Gizmodo reports, “numerous studies show the technology is especially inaccurate when identifying people of color and women compared to identifications of white men. Some law enforcement officials regularly acknowledge this fact, saying facial recognition is only suitable to generate leads and should never be used as the sole basis for arrest warrants. But there are very few rules governing the technology. Cops often ignore that advice and take face recognition at face value.”
 
When scientists tested three facial recognition tools with 16 pairs of doppelgangers – people with extraordinary resemblances – the computers found all of them to be a match. In the case of Reid, however, he was 40 pounds lighter than the criminal caught on camera.
 
In Metairie, the New Orleans suburb where Reid was accused of theft, law enforcement officials can use facial recognition without legal restriction. In most cases, “prosecutors don’t even have to disclose that facial recognition was involved in investigations when suspects make it to court.” Elsewhere in Louisiana, there is no regulation. A state bill to restrict use of facial recognition died in 2021 in committee. Some localities use facial recognition just to generate leads. Others take it and run with it, using it more aggressively to pursue supposed criminals.
 
As facial recognition technology proliferates, from Ring cameras to urban CCTVs, states must put guardrails around the use of this technology. If facial recognition tech is to be used, it must be one tool for investigators, not a sole cause for arrest and prosecution. Police should use other leads and facts to generate probable cause for arrest. And legal defense must always be notified when facial recognition technology was used to generate a case.
 
It may be decades before the technical flaws in facial recognition are resolved. Even then, we should ensure that the technology is closely governed and monitored.

Facial recognition software is a problem when it doesn’t work. It can conflate the innocent with the guilty if the two have only a passing resemblance. In one test, it identified 27 Members of Congress as arrested criminals. It is also apt to work less well on people of color, leading to false arrests.
 
But facial recognition is also problem when it does work. One company, Vintra, has software that follows a person camera by camera to track any person he or she may interact with along the way. Another company, Clearview AI, identifies a person and creates an instant digital dossier on him or her with data scrapped from social media platforms.
 
Thus, facial recognition software does more than locate and identify a person. It has the power to map relationships and networks that could be personal, religious, activist, or political. Major Neill Franklin (Ret.) Maryland State Police and Baltimore Police Department, writes that facial recognition software has been used to violate “the constitutionally protected rights of citizens during lawful protest.”
 
False arrests and crackdowns on dissenters and protestors are bound to result when such robust technology is employed by state and local law enforcement agencies with no oversight or governing law. The spread of this technology takes us inch by inch closer to the kind of surveillance state perfected by the People’s Republic of China.
 
It is for all these reasons that PPSA is heartened to see Rep. Ted Lieu join with Reps. Shelia Jackson Lee, Yvette Clark and Jimmy Gomez on Thursday to introduce the Facial Recognition Act of 2022. This bill would place strong limits and prohibitions on the use of facial recognition technology (FRT) in law enforcement. Some of the provisions of this bill would:
 

• Limit law enforcement use of FRT to situations in which a warrant is obtained that shows probable cause that an individual committed a serious violent felony.

 

• Prohibit law enforcement from using FRT to create a record documenting how an individual expresses rights guaranteed by the Constitution, such as lawful protests.

 

• Prohibit a FRT match from being the sole basis upon which probable cause can be established for a search, arrest, or other law enforcement action.

 

• Ban the use of FRT in conjunction with databases that contain illegitimately obtained information.

 

• Ban the use of FRT to track individuals with live or stored video footage.

 

• Require law enforcement to provide notice to individuals who are subjects of an FRT search and copy of the court order and/or other key data points.

 
The introduction of this bill is the result of more than a year of hard work and fine tuning by Rep. Lieu. This bill deserves widespread recognition and bipartisan support.