Regulation of facial recognition technology proving difficult from the onset

An interim legislative committee is studying the topic before the 2023 session

By: - February 6, 2022 8:55 am

The stairs of the Montana Capitol in Helena, Montana (Photo by Eric Seidle for the Daily Montanan).

Policymakers in Montana have spent part of the legislative interim working to understand how best to regulate facial recognition technology, a rapidly emerging but poorly understood field with numerous potential government applications and significant concerns for privacy.

Members of the Economic Affairs Interim Committee will have an opportunity at a meeting next week to question agencies and companies that make up Montana’s facial recognition services landscape.

In the 2021 legislative session, Montana was poised to adopt policies specifically regulating facial recognition technology, something few states have attempted. But pushback from other legislators stymied that effort, and the state instead moved to study the issue in advance of the next session, when privacy advocates hope this regulation could be coming.

One takeaway from the study effort so far, said Rep. Katie Sullivan, D-Missoula, who carried the original facial recognition bill, is that few people fully understand exactly what technology is out there and where it’s being used.

“There is a disconnect between what the average person thinks is happening and what is actually happening,” said Sullivan, who has been at the forefront of studying the technology. “And I am finding by and large, Montanans are expecting that their [facial] data is private.”

In Montana, three agencies have testified in front of the committee about their connection to facial recognition technology: the Department of Justice, Department of Labor, and the state’s Motor Vehicle Division. While the DLI and the DOJ do not have their own databases or use the technology themselves, they contract or feed into third-party entities that do. A new legislative report showed between 2017 and 2021, the DOJ received 13 facial recognition requests from other law enforcement agencies, only one of which was fulfilled.

A sticking point for the committee so far has been the MVD, which does have its own database that automatically feeds into the National Law Enforcement Telecommunication System, or NLETS, which has ambitions to use facial recognition technology.

“The most looming question really is to what extent is law enforcement engaging with these facial recognition systems that we are aware of,” said Kendall Cotton, president and CEO of the Frontier Institute, which advocates for “more freedom, not more government.” “And how often are these third-party vendors sharing biometric information with law enforcement?”

While the legislative committee is just starting to dig into the topic, things are already becoming convoluted, Sullivan said.

“It’s such a huge and complicated topic. We’re talking about a web of technology connections, and we’re still wading through it,” Sullivan said. “There’s a big system of databases with groups between them, and figuring out who does what has been really hard.”

At the committee meeting next week, Clearview A.I,  a controversial facial recognition company that has been tested out by the Gallatin County Sheriff’s Office, Missoula Police Department, the Fusion Center, and the Great Falls Police Department will present to the committee. Also testifying will be, which contracts with DLI as a way for the agency to ward off unemployment fraud and has come under fire recently after the Internal Revenue Service announced it would be contracting with the company to require citizens to use facial recognition as a condition to filing taxes online.

“Our committee needs to learn more about who is accessing what,” Sullivan said.

Montana is one of only a handful of states in the country that has proposed legislation regulating the use of facial recognition technology. Still, there are few specifics about what that may look like in Montana. A Center for Strategic and International Studies outlined the most common ways states regulate the use of the technology either through warrants for its use in criminal activity, legislative approval for agency use or limiting what agencies can use the technology.

House Bill 577, proposed by Sullivan this last session, would have restricted how agencies could use the technology, required agencies to provide public notice before instituting the technology, and would have put in place a review process for agencies using the technology.

But after pushback over concerns that Sullivan was trying to move too fast on too big of a topic, the bill failed its second reading in the house. Now, Sullivan, one of the topic’s leaders on the Economic Affairs Interim Committee, is studying the topic before the 2023 legislative session.

That Montana wasn’t able to agree on a regulatory policy isn’t exactly surprising, said Jim Lewis, the senior vice president and director of the Strategic Technologies Program at CSIS. Even defining the technology can be difficult.

There are different flavors of facial recognition, and each one needs a different set of regulations,” he said. “And it’s hard to come up with guidelines because … law enforcement needs more, but some commercial use needs less.”

Lewis recently co-authored a report looking at responsible facial recognition technology and policy surrounding the technology. One of its key findings was there is mass confusion around the topic and that in the absence of federal policy, states need to address legitimate abuse of power concerns that the technology poses through clear laws and policies.

The lack of understanding among the public about the extent of how the technology is used is concerning, said Leslie Corbly, a privacy policy analyst at the Libertas Institute. “It really means that people are losing control over their personhood in the way of not understanding how their image is being processed, stored, used and disseminated.”

At the committee’s November meeting, the overarching message from those who spoke about the technology was that there needs to be more transparency from the state about its use of facial recognition technology and that its use cannot interfere with Montanan’s heightened right to privacy. 

Sullivan agreed.

“It’s explicit in our Montana constitution that we have a right to privacy, and I think it’s pretty straightforward, and I take it seriously. And it includes the right to privacy from surveillance from the government,” she said.

This story has been updated to include DLI contracts with ID.ME and that Leslie Corbly works for the Libertas Institute.

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Keith Schubert
Keith Schubert

Keith Schubert was born and raised in Wisconsin and graduated from the University of Minnesota in 2019. He has worked at the St.Paul Pioneer Press, Milwaukee Journal Sentinel and most recently, the Asbury Park Press, covering everything from local craft fairs to crime and courts to municipal government to the Minnesota state legislature. In his free time, he enjoys cheering on Wisconsin sports teams and exploring small businesses. Keith is no longer a reporter with the Daily Montanan.