FBI and TSA legal footing criticized at house committee facial recognition hearings

U.S. lawmakers criticized the FBI’s failure to implement five of the Government Accountability Office’s (GAO’s) recommendations and expressed concern with the method the FBI used to gather images from states for its facial recognition database in hearings Tuesday.

Government agencies take their turn at The House Committee on Oversight and Reform’s reconvened facial recognition hearings, with testimony from both the FBI and GAO, and well as the TSA and NIST.

FBI Criminal Justice Information Services (CJIS) Information Services Deputy Assistant Director Kimberly Del Greco told the committee that facial recognition greatly enhances law enforcement capabilities and helps protect public safety.

“It is crucial that authorized members of law enforcement and national security communities have access to today’s biometric technologies to investigate, identify, apprehend, and prosecute terrorists and criminals,” Del Greco testified. The FBI’s NGI-IPS system has been used for 152,500 facial recognition searches by the agency or state or local law enforcement.

Multiple members of Congress took issue with the FBI not following recommendations the GAO made in 2016, including an investigation into why privacy impact assessments and SORNs are not being published as required, and accuracy assessments. Del Greco testified that the FBI has made progress on the recommendations, particularly with regard to validating accuracy.

GAO Homeland Security and Justice Division Director Dr. Gretta Goodwin told the committee that the FBI and DOJ have not carried out the necessary steps to ensure the technology’s accuracy, nor its respect for civil liberties. The GAO also issued a new report on the system, noting that the FBI now has access to 641 million images, including 21 state databases, many or most of whom have not been arrested or charged with a crime.

Congressman Jody Hice (R-GA) referred to those images as a “precrime database,” invoking Philip K. Dick’s dystopian Minority Report. “The laws that you’re relying on were passed before facial recognition became popular,” said Rep. Thomas Massie (R-KY) told the FBI. “That’s a problem.”

Transportation and Security Administration (TSA) Assistant Administrator of Requirements and Capabilities Analysis Austin Gould spoke about the use of facial recognition in airports for flight check-in and bag drop processes. Some members of Congress criticized the opt-put basis of the trials, saying they should be opt-in. Rep. Mark Meadows (R-NC) called for the program to be paused while statutory authority is clarified.

The Commercial Facial Recognition Privacy Act, which was introduced in the senate this year, would require informed consent from an individuals to use their photos.

Committee Chair Elijah Cummings (D-MA) said the agencies will be called back in two months to see if any progress has been made towards following recommendations.

At the first hearing, there was broad bi-partisan consensus among lawmakers that the current legal framework for facial recognition does not sufficiently protect civil liberties. That assessment was reaffirmed several times during the second day of hearings.

“American citizens are being placed in jeopardy as a result of a system that is not ready for prime time,” said Cummings.
In an opinion piece for The Hill, Project on Government Oversight’s Senior Counsel for The Constitution Project, Jake Laperruque says that Congress is ready to act on regulating facial recognition.

“(B)road consensus is emerging on necessary safeguards,” he writes. “There are viable solutions, including requiring police to obtain a warrant to use the technology, limiting its use to serious crimes, mandatory human review of matches and independent testing and accuracy standards.

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