Fate of ‘draft’ law restricting Minnesota law enforcement use of facial recognition unclear
Draft legislation out of Minnesota’s relatively obscure Legislative Coordinating Commission Subcommittee on Data Practices would prohibit law enforcement agencies from acquiring facial recognition data from private entities and proposes coding for new law in Minnesota Statutes.
But given what seems to be little concern politically to move fast – it is the second time a state legislative body has raised the issue of facial recognition use by law enforcement – the draft proposal of the bill does not seem destined to be put on a fast track, although both some state Republican lawmakers and the American Civil Liberties Union (ACLU) agree the use of facial recognition by law enforcement poses reasons to be concerned. The last hearing was on November 7, and the issue doesn’t appear again on the subcommittee’s calendar.
The commission was established in 2019 to study issues relating to government data practices and individuals’ data privacy rights and to review legislation impacting data practices, data security, and personal data privacy.
The draft bill, SC5873-1, which Republican Subcommittee Charman Sen. Warren Limmer corrected a witness who referred to the proposal as a “draft of legislation” during a recent hearing by saying, “You made reference to this draft of the legislation. I don’t see it as legislation. I see it as a draft. Once it gets authored, I would say it’s potential legislation.”
Because the subcommittee has sunsetted, if actual legislation was introduced, it would first have to be passed out of the Senate Judiciary and Public Safety Committee or the House Judiciary and Civil Law Subcommittee.
The hearing was “designed for the purpose of our commission to have a discussion, a starting point,” Limmer stated, noting, “It is to provoke reaction and discussion by the public as well as our members.”
The draft bill would, according to the summary prepared by Senate Counsel Priyanka Premo:
• Prohibit law enforcement agencies from entering into agreements or information arrangement with a private entity to purchase, acquire, or collect, or use facial recognition data;
• Require an individual who is the subject of facial recognition data has access to that data unless the data is part of an active criminal investigation. Law enforcement agencies must comply with the Minnesota Government Data Practices Act concerning facial recognition technology and facial recognition data;
• Require a law enforcement agency to establish and enforce a written policy governing its use of facial recognition technology and make the policy available publicly;
• Require a law enforcement agency to maintain information about the number of times facial recognition technology aided in a criminal investigation; the number of times facial recognition technology was used for reasons other than criminal investigations; and the number of times and the reason a law enforcement agency shared the technology or data with another law enforcement agency, government entity, or federal agency; and
• Require a law enforcement agency to notify the Bureau of Criminal Apprehension within ten days of obtaining new facial recognition technology. The notification must include a description of the technology and intended uses.
Rich Neumeister, described as the state’s foremost “citizen lobbyist” and “privacy and government transparency advocate who follows privacy and open government issues at the State Capitol,” asked during the hearing whether “the legislature [will] take an approach to have a comprehensive policy or have de-centralized process where the local political subdivision makes the decisions and sets the policies?”
“This is the central point of subdivision 4” of the proposed draft bill, the written policy requirement, according to which a law enforcement agency using the technology “must post the written policy on its website, if the agency has a website, and must make the policy available to the public upon request.”
Neumeister said, “My suggestion [is to] have a broad policy with specific guard rails, accountability, and transparency. Similar to what was done with license plate readers and body cameras.”
Another question he raised is; “what photo databases are being or could be used to compare images when facial recognition is done, booking and arrest photos, how about drivers license photos, etc.? My understanding is that driver’s license photo cannot currently be used. Is that correct? Where does the definition of ‘facial recognition technology’ originate from? I spoke with a privacy expert who indicated to me that the definition ‘opens the ability to do real-time face analytics on streaming video, which Amazon’s Rekognition (facial recognition software and program) currently sells. It was suggested for a substitute of the definition used by the City of Oakland, California in their local ordinance. There are other ideas for definitions from many sources.”
Neumeister provided the subcommittee “a paper copy of recommendations from the Georgetown Law Center on Privacy and Technology on policy and legislation from their comprehensive report on facial recognition.”
That report, The Perpetual Line-Up: Unregulated Police Face Recognition in America, was published in October 2016.
Nevertheless, Neumeister told the state lawmakers that “The list of recommendations helps you as policymakers decide questions and issues that need to be addressed in legislation regarding facial recognition. As I stated in written testimony last November, facial recognition technology challenges First and Fourth Amendment principles to their core. Nothing new as Minnesota policymakers have discovered with the avalanche of new technology such as Stingray, license plate readers, for example. There are no restrictions or regulations in Minnesota with the use and deployment of this particular technology.”
Continuing, he noted, “This is the second time that a body of the Minnesota legislature is taking up the topic of facial recognition on its own without being intertwined with other initiatives. Today’s meeting is one of starting the discussion of specifically what the law to be, but the continuation of the discussion with the public as to what the law should be must also continue!
The legislature needs to enact a comprehensive law on facial recognition. There need to be guardrails, standards, and curtailing policies so that the use and rules are not developed by law enforcement agencies in secret. There needs to be legislative approval and transparent discussion for the public. Our privacy and civil liberties can be diminished if this onerous and powerful technology is not kept in check.”
ACLU-Minnesota Policy Director Julia Decker has said the technology could “upend the right to be anonymous in public,” comparing it to “wearing a blown-up copy of your driver’s license on your chest with a GPS tracking device attached.”
Republican Rep. Eric Lucero said, “In my opinion, increased use of surveillance capabilities by the government is a significant threat to both the spirit and letter of the 4th Amendment.”
“Why would you want a camera on an isolated light rail passenger car?” Limmer said. “Because there’s a crime taking place in an isolated location like that and usually there are no witnesses, the victim is alone. The public good would be to gather information for prosecution and put the signal out that you will get caught.”
Republican Rep. Peggy Scott, who supported the draft proposed legislation, said following the hearing, “Now that we all want to buy a piece of land in the forests of Colorado to evade all this stuff, it’s overwhelming. You can see the gravity of what we have to deal with here.”