The state of Washington was the first in the nation to pass a bill that encompassed government use of facial recognition technology. In March, State Governor Inslee signed SB 6280 into law with an effective date of July 1, 2021.
While the bill has been celebrated as a guiding template for other states, the bill misses the mark in safeguarding civil liberties.
One of the most visible proponents of the bill, President of Microsoft Brad Smith applauded the passage, saying, “Washington state’s new law breaks through what, at times, has been a polarizing debate. When the new law comes into effect next year, Washingtonians will benefit from safeguards that ensure upfront testing, transparency, and accountability for facial recognition, as well as specific measures to uphold fundamental civil liberties.”
Facial recognition software use in conjunction with police body cameras was previously prohibited in California, Oregon, and New Hampshire. While several cities—notably Somerville in Massachusetts, San Francisco, Oakland, and Berkeley, California—have banned facial recognition at the local level.
The motivation for restricting the government’s use of facial recognition is multifaceted. Surveillance can erode privacy and due process and may lead to chilling effects that threaten freedom of speech and expression. Additionally, the risk of government facial recognition technology leading to a disproportionate impact on people of color is certainly high.
It has been well documented that facial recognition technology has a significant error rate. In particular, women and individuals with darker skin tones are most likely to be misidentified. In a highly publicized report, the ACLU ran images of Congressmembers against a mugshot database using Amazon’s “Rekognition” software—the software incorrectly identified twenty-eight of them.
The facial recognition software of Idemia, which is touted as one of the more advanced programs available and is currently in use by American police, falsely identifies African-American women 10 times more often than white women.
One of the opening lines of the bill even admits, “Unconstrained use of facial recognition services by state and local government agencies poses broad social ramifications that should be considered and addressed.” Though SB 6280 addresses in part some of the concerns of facial recognition by creating some nominal limits on facial recognition use, the bill is woefully underwhelming.
Weak Oversight and Enforcement
A major weakness of the bill is the lack of guaranteed and informative reporting. There is a requirement to complete periodic “accountability reports”, which at least includes provisions for data management, access, and retention. However, the nature of the outlined requirements is short of mandating transparency and demonstrating efficacy.
Furthermore, there are no provisions in the bill that offer sound enforcement mechanisms. This leaves city and county governments wide open for civil suits. What happens if a municipal government reports a high error rate or ignores the bill? It is unclear. There is even no requirement to have the reports approved.
After passing through the legislative body, Inslee further weakened the language and vetoed Section 10 of SB 6280, which created a task force assigned with:
- Providing recommendations addressing the potential abuses and threats posed by the use of facial recognition services, while also addressing how to facilitate and encourage the continued development of these services;
- Providing recommendations regarding the adequacy and effectiveness of applicable Washington state laws; and
- Conducting a study on the quality, accuracy, and efficacy of service.
Weak Protections Against Warrantless Surveillance
The bill only requires a warrant for a small portion of potential applications. Circumstances requiring a warrant would be “ongoing surveillance”, which is the real-time or historic tracking of an individual and “persistent tracking”, the tracking of a specific, but unidentified individual.
In a point belabored by Jennifer Lee of ACLU Washington, “This means that agencies may use face surveillance without any restrictions to surveil entire crowds at football stadiums, places of worship, or on public street corners, chilling people’s constitutionally protected rights and civil liberties.”
While courts have generally maintained that expectations of privacy are comparatively lower in the public square, the possibility of being surveilled the second one walks out of their home represents an unparalleled expansion of the government’s power.