Minnesota Legislature begins considering facial-recognition technology regulations

A joint legislative committee has taken the first small steps toward considering what a handful of cities and states around the country have already done — regulating or banning the use of facial recognition software by business and government.

It was such a small step considered by a subcommittee of the relatively obscure Legislative Coordinating Commission that the chair corrected a witness who called a proposal a “draft of legislation.”

“You made reference to this draft of legislation,” Sen. Warren Limmer said. “I don’t see it as legislation. I see it as a draft. Once it gets authored I would say it’s potential legislation.”

So what was before the subcommittee Thursday? “It is designed for the purpose of our commission to have a discussion, a starting point,” the Maple Grove Republican said. “It is to provoke reaction and discussion by the public as well as our members.” And since the subcommittee has sunsetted, any bill that might emerge would have to start in a standing committee of the Legislature, such as Limmer’s Senate Judiciary and Public Safety Committee or Rep. John Lesch’s House Judiciary and Civil Law subcommittee.

The Thursday draft was brief: Police agencies in Minnesota would have to have written policies on the use of the technology; they couldn’t enter into agreements with private entities to gain facial recognition data; unless it is part of a criminal investigation, people whose facial recognition data is collected have a right to access that data; data collected by agencies is subject to the Data Practices Act; police agencies must prepare reports that show how often such data is used in a criminal investigation, how often it is used for reasons other than a criminal investigation and the number of times a police agency shared data with other police agencies or government entities.

The draft doesn’t do a lot of other things common to other states and cities. Primarily, it doesn’t ban the use of facial recognition technology nor even place a moratorium on its use. Priyanka Premo, a Senate staff attorney assigned to the subcommittee, said the draft also doesn’t discuss whether to restrict the use of the technology by both public and private entities or try to distinguish between allowed uses and disallowed uses.

She said other topics of discussion not included in the draft could be whether a city council or county commission should have to give public approval for use of the technology. And there are also concerns that the technology has higher false identification results for African-Americans and Asian-Americans and potential legislation could try to respond to those. Finally, she said the Legislature could consider prohibiting the incorporation of non-law enforcement databases such as drivers license photos.

The subcommittee met the same week that 40 organizations signed a letter to a federal commission that reviews privacy concerns post 9/11. The letter, signed by civil rights and privacy groups, called for a nationwide ban on use of the technology. It came in the aftermath of a New York Times article about a company called Clearview AI that claims to have scraped 3 billion photos from social media. Its application lets users upload a photo and match it to any of those photos, along with links to where those photos appeared. The founder claims to have provided the app to 600 police agencies, including the FBI and Homeland Security.

As with most privacy and civil liberties issues, support came from both liberals and conservatives, from the ACLU to a member of the House New Republican Caucus.

Rich Neumeister, a privacy and government transparency advocate, suggested that the Legislature at least place a moratorium on the technology until the state had time to review the concerns. He cited three local cases where questions about the technology have come up:

• The Metropolitan Council just contracted with a vendor to provide improved cameras for light rail trains that are capable of real-time monitoring of riders using data bases of photos of potential troublemakers, as well as capture  audio of passengers;
• St. Paul just purchased a system that helps it sort through body and surveillance camera footage that could be equipped with facial recognition capabilities; and
• The Minneapolis Police Department has said it doesn’t use the technology but freelance journalist Tony Webster has found in probable cause statements where police officers say it was used.

“The new technologies … enable retroactive and real-time mass surveillance. It changes the balance of power between its people and the government,” Neumeister said. “When it comes to technology like this that compromises civil liberties and privacies, the Legislature — you — need to take the bull by the horns and come out with a comprehensive kind of legislation.”

Julia Decker, policy director of the ACLU-Minnesota, said the technology could “upend the right to be anonymous in public.” She compared it to “wearing a blown-up copy of your driver’s license on your chest with a GPS tracking device attached.”

Said Rep. Eric Lucero, R-Dayton: “In my opinion, increased use of surveillance capabilities by government is a significant threat to both the spirit and letter of the 4th Amendment.” He said it could dissuade citizens from exercising speech and assembly rights.

Limmer said he was sensitive to privacy concerns but said the technology could have benefits to public safety.

“Why would you want a camera on an isolated light rail passenger car?” Limmer asked. “The answer is somewhat obvious. Because there’s a crime taking place in an isolated location like that and usually there are no witnesses, the victim is alone. The public good would be to gather information for prosecution and put the signal out that you will get caught.” That would in turn give passengers more confidence to use the light rail system, Limmer said.

Cass Weiland, a self-described technologist and a member of the Minnesota chapter of Restore the Fourth said he agreed that technology can have a positive impact on society.

“We love technology. We know that it can play a really important role in public safety and prosecuting crimes,” Weiland said. “What we want to emphasize is that when you think about the systems and the technologies that we’re building, the structure of how it is integrated into society, the decisions are largely being made by companies and corporations that don’t have the public interest in mind.

“It’s up to government, it’s up to you guys, to weigh the public interest,” Weiland said.

Metro Transit spokesman Howie Padilla said that the agency has no plans to employ facial recognition on trains and that while the new camera system has such capabilities, the agency did not purchase that application from the vendor.

At the end of the hearing, Rep. Peggy Scott, a backer of the draft proposal, summarized the unease she said she has with the increased use of surveillance.

“Now that we all want to buy a piece of land in the forests of Colorado to evade all this stuff, it’s overwhelming,” the Andover Republican said. “You can see the gravity of what we have to deal with here.”