The Massachusetts state legislature has officially passed a new police reform bill that establishes some basic rules for the use of facial recognition. The restrictions are not as strong as privacy advocates had originally hoped, though the bill is nevertheless one of the first pieces of legislation that attempts to govern the use of the technology at a state-wide level.
According to the new bill, local law enforcement officers will now need to obtain a court order before performing an image search using an FBI, state police, or Registry of Motor Vehicles (RMV) database. They will also need to make a record of each search, to generate statistics that will eventually be released to the public. A formal commission will then evaluate those statistics (and the technology itself) to make additional policy recommendations moving forward.
In the past, the police use of the technology was largely unrestricted, insofar as officers did not need to obtain permission and could conduct a state-wide search for virtually any reason. Many of those searches were not recorded, or disclosed to the defense during criminal trials. Under the new rule, officers will at least need to have a valid reason to perform a search.
“It prevents the use of it by the police when it’s not relevant to an investigation, which is an important but fairly low standard,” said ACLU of Massachusetts Executive Director Carol Rose. “That means [law enforcement] can’t track someone in their personal life for personal reasons, like an ex-spouse, and so it prevents the most bald-faced types of potential misuse.”
However, the law does have several loopholes that could limit its effectiveness as an anti-surveillance measure. Most notably, the law does not prevent the FBI or the State Police from signing a contract with a private company like Clearview AI, so local law enforcement would still have access to unregulated databases when they collaborate with those agencies. The original version of the bill also would have required a warrant rather than a court order, though that rule was relaxed due to the opposition of Massachusetts Governor Charlie Baker, who has indicated that he will refuse to sign any bill that prohibits facial recognition searches.
The bill’s proponents noted that facial recognition is more likely to misidentify the faces of people with darker skin, and cited the public’s growing awareness of such bias as a motivating factor in the legislature. Several municipalities (including Boston and Cambridge) have implemented local facial recognition bans, while Massachusetts Senator Ed Markey has tabled similar legislation at the federal level. He indicated that the Massachusetts bill could show lawmakers how to get similar laws passed in other jurisdictions.
May 12, 2021 – by Eric Weiss