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States emboldened to move on biometrics privacy legislation


Biometric facial recognition to verify identity

Given the anti-establishment and anti-police sentiment curdling political discourse at both ends of the spectrum right now, it is unsurprising to see restrictive biometrics laws advancing in state houses.

In fact, skepticism about law-enforcement surveillance might be the only unifying point of view in the United States at the start of 2021. Not infrequently, skepticism is giving way to hostility.

The radical right wing of American politics had been mostly quiet when Black Lives Matter and related civil rights groups were being biometrically cataloged as they organized and marched.

And it is a safe bet that those on the political left are not going to express outrage at how face biometrics scraped by Clearview AI are being used to identify pro-Trump conservatives who January 6 went looking for souvenirs and, apparently, hostages at the U.S. Capitol Building.

But now everyone feels wronged.

And while the U.S. Congress might take a while to feel the heat on the need for biometrics regulation, states continue — sometimes timidly — moving. (Some efforts were in the works prior to the insurrection.)

In Alabama, a Republican legislator has introduced a bill that would prevent police from using facial recognition as the only reason for arresting someone or asserting probably cause, which is what law enforcement must demonstrate before stopping a person prior to arrest. Facial recognition is not currently accepted as grounds for probably cause anywhere in the country.

The proposed bill would restrict law enforcement to facial recognition use after obtaining a warrant, a court order to identify a missing or deceased person, if a court agrees it could help locate a missing person, or under extreme circumstances.

Utah senators have passed a bill would limit use of the state’s facial recognition database to police officials who specifically request the information during an investigation.

State representatives would need to approve the bill, too, and the governor would need to sign it. The legislation has been criticized as too limited. It does not, for example, prevent police agencies from building their own databases, which would not be subject to the proposed law.

The Maryland general assembly, meanwhile, is debating legislation that the Electronic Privacy Information Center says is modeled after Illinois’ groundbreaking privacy law passed in 2008, complete with a right of private legal action by individuals. Identical versions of the proposed Maryland law are moving through both halves of the state’s assembly.

Like Illinois’ Biometric Information Privacy Act, the Maryland legislation would minimize the use and storage biometric data and push companies to provide more security for the information.

A fourth piece of lawmaking, this amending an existing law in New York, spells out three situations in which biometric identifying systems can be use.

In New York, the governor signed the bill, which mandates that employees must first consent to being surveilled and having any biometrics placed in a database.

Fingerprint scanning can be done on would-be employees if doing so is required by state law and regulation.

Third, schools can use biometric systems only if an organization representing employees has consented to them in writing.

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