Legislative committee weighs options for regulating facial recognition in Montana

The committee heard from two facial recognition services with ties to Montana at its Wednesday hearing

By: - February 11, 2022 6:06 pm

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

Privacy advocates and industry professionals warned lawmakers on a legislative panel Wednesday that Montana could wade into a dystopian future if the state does not quickly institute uniform laws regulating the use of facial recognition technology.

The Economic Affairs Interim Committee has been studying the use of facial recognition technology following the 67th legislative session, where a bill that would have governed the use of facial recognition technology failed, but one directing the interim committee to study the issue passed. On Wednesday, Clearview AI and ID.me — two facial recognition technology services with ties to Montana — appeared before the committee for questioning.

After hearing from the companies, the committee discussed what legislation of the technology in Montana might look like going forward. The committee has not started drafting legislation, but Rep. Katie Sullivan, D-Missoula, said requiring companies to notify Montana if they change their privacy policies, requiring search warrants or probable cause from police to access facial recognition databases and limiting the use of the technology to more severe crimes like trafficking were all concepts the committee should consider going into the drafting process.

Both companies touted their robust internal policies, saying they are adequate to protect user privacy. However, those policies do not negate the need for governmental oversight, said committee chairman Sen. Kenneth Bogner, R-Miles City.

“Those are great, but at any time, they can change their privacy policy, and we want to put some sideboards on there so there is the basic threshold for privacy the entities using the technology must adhere to,” he said in a phone interview.

In Montana, four law enforcement agencies have tested out the capabilities of Clearview AI, according to a database released by BuzzFeed. But at Wednesday’s meeting, Jessica Garrison, vice president of Government Affairs at Clearview AI, said no Montana agency currently contracts with the company.

Clearview AI’s facial recognition database is made up of public photos from various internet spaces, including social media websites, mugshot databases and online news clippings. The company contracts exclusively with law enforcement agencies.

Critics have labeled Clearview AI a surveillance tool, but Garrison denied the assertion, saying it operates more as a search engine.

“It’s only public information. It’s investigation, not surveillance,” she said.

Garrison said the technology is especially helpful for investigating human trafficking crimes against minors whose photos may not be stored in something like a driver’s license database.

Missoula Police Department Detective Guy Baker, who investigates human trafficking, told the Daily Montanan he has not used facial recognition technology during investigations but said it could be helpful.

“I think it would probably be a good idea. There’s no expectation of privacy in public, so if they are using this technology in a public place and it’s helping recognize missing people, then I think that might be a good idea,” he said.

Sullivan spoke out against the company’s practices on Wednesday.

“I do consider this type of technology surveillance technology. And I find it quite dystopic,” she said.

The Departments of Justice, Defense, Homeland Security, and the Interior all use Clearview AI at the federal level. But a group of federal Democratic lawmakers recently called on the departments to terminate their contracts.

“Clearview AI’s technology could eliminate public anonymity in the United States,” the lawmakers wrote in a letter to the departments. By scraping the internet for billions of photos without permission or notice to the people pictured, the company is creating a problematic database of personal information, they said.

“In conjunction with the company’s facial recognition capabilities, this trove of personal information is capable of fundamentally dismantling Americans’ expectation that they can move, assemble, or simply appear in public without being identified,” the lawmakers said in the letter.

A handful of countries have launched investigations into Clearview AI over concerns about violating privacy laws. And at least two countries — Australia and Canada — have ruled the company’s practices illegal and ordered it to delete all citizen data.

The other company to testify — ID.me, differs in its operations from Clearview AI and provides facial recognition services to a range of agencies outside of law enforcement. In Montana, ID.me contracts with the Department of Labor and Industry to help ward off unemployment fraud.

The department said it contracted with the company after experiencing a spike in unemployment fraud at the onset of the COVID-19 pandemic and said it has seen fraud drop since contracting with the company, which has verified 39,077 claimants for the department, according to information presented to the committee.

Days before the company appeared before the committee, the Internal Revenue Service abandoned its plans to require people to submit to facial recognition verification through ID.me to access their online tax accounts. Pete Eskew, general manager of ID.me’s public sector division, told the committee that the IRS had not canceled its contract with the company and that it was presenting the IRS with other options to verify taxpayers’ identities without using facial recognition.

During questioning, he attempted to assure legislators that Montanan’s data is adequately protected.

“We never share biometric information unless we are compelled by a subpoena. And we will guarantee that we will not monetize that information,” Eskew said.

The company has cooperated with 35 subpoenas and three search warrants in the last year, according to documents provided to the committee. Additionally, he said Montanans can opt-out of sharing their facial data with the state.

And during public comment, Steve Cape, who testified on behalf of the Montana Coalition for Safety and Justice, shared his concerns about the future of privacy in Montana.

“Privacy can be found in the parking lot. It’s a chalk outline. It’s dead,” he said. “We don’t have any right or any ability to protect our privacy because there are no privacy laws in Montana.” And he said Clearview AI specifically confirms the death of privacy in Montana. “Everywhere you go, you’re taking pictures, and Clearview scraped every picture you have.”

Bogner said it was nice to hear directly from the companies during Wednesday’s meeting.

“It was interesting to hear the benefits … I think this last committee meeting was really good to hear the other side,” he said.

Still, he said the legislature must act to ensure adequate privacy protections are in place.

“We are all just trying to find that balance between safety and privacy … It’s going to be a little difficult to find that balance between not impeding too much between what should be allowable and not,” he said.

Kendall Cotton, one of the leading advocates for more oversight of the technology in Montana and president of the Frontier Institute, agreed.

“Just because there is potential for good doesn’t mean there should be a pass for all the bad things that can happen,” he said.

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Keith Schubert
Keith Schubert

Keith Schubert is a reporter for the Daily Montanan. Keith 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. He can be reached by text or call at 406-475-2954 .