More biometrics laws, more tactical advice, too little about trust
The debate over police use of facial recognition continues without an obvious end. A few states — the latest is Virginia — and municipalities are writing legislation, but only policy makers seem happy with the results.
Two-dimensional choices are popular right now. Ban biometric systems, write a de facto ban or put a moratorium on their use. That is, wish the idea away, make it legal but impossible or schedule a date for choosing from the previous two options.
They are simple, temporary solutions that will have to be replace with nuanced government action that engenders trust.
Two unavoidable facts will force lawmakers hands. Legitimate uses for government deployment of facial recognition exist. And concerns about abuse and loss of privacy are legitimate.
Virginia lawmakers earlier this year chose to create a de facto ban. The governor has yet to sign House Bill 2031, but given the measure’s unanimous support in the upper and lower house, it will be law unless something major changes the minds of many commonwealth politicians.
Local police are free to use facial recognition (an unknown number already have used it) just as soon as the commonwealth legislature enacts a law expressly allowing it. The prospect of that is small.
A public policy consultant, Stuart Brotman, has suggested another option (which he describes in understated grandeur as a third way).
Limit the way agencies can use face biometrics. Spell out how comparisons are done and when they are legal. Require a written request that specifies what crime is under investigation — a threat to human life, a violent crime or a felony. Create a “‘ factual narrative’ establishing a ‘fair probability'” that a named person is involved in the alleged crime, writes Brotman.
Or make the case that biometrics is needed to ID someone who is dead, at risk of harm, incapacitated or unable to identify themselves to police. And restrict how law enforcement agencies can make use of privately owned databases like those for social media services.
The recommendations go on. They are largely based on pending legislation in Utah.
The specifics are a welcome change from vague or overly simplistic provisions politicians elsewhere in the nation prefer to consider. And at least at the outset the specifics offer a degree of transparency.
But very little of what Brotman is proposing addresses trust, without which, it is going to be difficult win sufficient public support. Where is a person’s right to redress, for example?
Not enough thought, and the author is far from alone here, is given to honestly educating the people to be investigated about the good and bad of face biometrics, listening to their concerns and working with the industry to address them with real system and policy innovations.
Lawmakers could make trust possible if they imposed radical transparency on all aspects of the technology and as much as practical of law enforcement and judicial use. They could hold businesses to the same standards of openness.
And create consistent rules and procedures for everyone. Washington D.C. has to take the lead before there is a mash of rights and responsibilities.
Maybe it would help to stop thinking about this as a complicated technology and instead make the act of building trust the goal, with facial recognition and every bracing new technological leap being the beneficiary of achieving the first goal.