Washington State’s King County joins a growing list of US jurisdictions banning the use of facial recognition software
King County, Washington State’s most populous county with over 2 million residents, passed an ordinance on June 1, 2021, banning both administrative offices and local law enforcement agencies from using facial recognition technology and from gathering information through agreements with third parties’ use of the technology.
The ordinance acknowledged that “the use of facial recognition technology to watch, categorize, monitor and record the…movements of country residents disproportionately impacted people of color, immigrants, LGBTQ people and political activists of all backgrounds.” According to Census data from 2019, the county is home to nearly 66% Caucasians, 20% Asians, and 7% African American citizens.
Facial recognition technology has a demonstrated history of misidentifying individuals, especially women, and people of color — with black women having the highest chance of being misidentified (we’ve discussed the sexual bias in facial recognition in more detail here). There are at least three ongoing cases in different states initiated by black men and women for false arrests due to mismatch through facial recognition. The most recent of these is from April 2021, initiated in Detroit.
King County’s ban comes on the heels of several such bans placed on public/private use of facial recognition software over the last year in at least a couple of dozen other regions across Oregon, California, Massachusetts, Tennessee, Minnesota, Illinois, Louisiana, and Pennsylvania. BanFacialRcognition.com a project of Fight For the Future, has created an extremely informative map that tracks facial recognition technology laws and their enforcement across the USA, both by state and non-state actors.
While the ordinance passed by the King County Council is an attempt to ban facial recognition use in the county, it is noteworthy that section 3(2)(a) of the ordinance provides that the law enforcement authorities can still use evidence that might have been generated from a facial recognition technology, so long as the evidence was not generated by or at the request of the enforcement authority. It is worth considering if this may also be read to mean that officials can still use information gathered through facial recognition technologies independently placed and used on private property by the property owner, for instance, in the cases of burglary or trespassing.
Regulation of facial recognition is tricky, and as is evidenced above, states have generally taken an all-or-nothing approach. However, Massachusetts has been one of the first states to pass a law that regulates state-wide use of facial recognition technology in a nuanced way The bill, which goes into effect in July 2021, requires that law enforcement seek a judge’s permission before running a search on facial recognition software. An additional safeguard requires local officers to have state police, F.B.I or the Registry of Motor Vehicles perform the search and share information with them — they can’t carry out a search/access the database on their own.
While no federal laws have been passed on this matter yet, June 2020 saw the introduction of a bill in the US Congress that sought to ban the use of facial recognition. However, since then, the technology has been used for law enforcement purposes, most noticeably, to identify and arrest the rioters from the January 6 attack on Capitol hill. In light of this, and aggressive lobbying on the part of law enforcement and others in favor of using the technology, it remains to be seen whether such a bill banning it outright would pass, or alternatively, like Massachusetts, the US Congress will find a middle ground and regulate the use of facial recognition.
About the Author: Shreya is an Employee Fellow at the Berkman Klein Center, where she works on the Lumen Project. She is a passionate digital rights activist and uses her research and writing to raise awareness about how digital rights are human rights. She tweets at @shreyatewari96!
