Testimony submitted to the Commission on Facial Recognition on July 30, 2021
Senator Jamie Eldridge and Representative Michael S. Day, Co-Chairs
Public Comment
Government Use of Facial Recognition Technology
Dear Senator Eldridge, Representative Day, and members of the commission,
I am writing as the Issues Committee Chair of Progressive Massachusetts to provide some comments about the use of facial recognition technology in Massachusetts. We respectfully ask that the Commission recommend the legislature strengthen existing facial recognition law to ensure Massachusetts residents and visitors are shielded from discriminatory, dragnet surveillance and other harms.
Progressive Massachusetts is a statewide grassroots advocacy group fighting for a Massachusetts that is more equitable, just, sustainable, and democratic. We are appreciative of the work that the Legislature did last session in passing police accountability legislation that created better standards for police professionalization as well as stronger limitations on the use of force. But there is more work to be done.
The law, codified in Chapter 253 of the Acts of 2020, contains several provisions pertaining to government agencies’ use of facial recognition technology.
While we support some of those provisions, namely the creation of this Commission, the regulations governing police use of facial recognition fall far short of what we need.
We have the following key concerns about the current regulations:
- They only regulate facial recognition technology as used by law enforcement agencies, neither prohibiting nor regulating when this technology can or cannot be used by public agencies of different nature, for example schools or local parks departments.
- They do not establish any limitation regarding who can directly use and operate a facial recognition system and impose very weak standards governing police requests, court orders, and the use of the technology in criminal investigations.
- They fail to provide any due process protections for defendants who have been subject to the use of facial recognition systems.
- They lack any enforcement mechanism to ensure that public officials comply with the law.
Thankfully, lawmakers have addressed these and other concerns in legislation filed this session. H.135, An Act To Regulate Face Surveillance, sponsored by Representatives Rogers and Ramos, and S.47, An Act To Regulate Face Surveillance, sponsored by Senator Creem, provide for some useful policy solutions to the ones outlined above.
H.135 and S.47 would, among other steps, prohibit all public entities, including public schools, the department of transportation, and other public agencies in the Commonwealth, from using and possessing this technology; create a notice-and-disclosure framework that will let persons know when facial recognition was used to identify them; and establish an exclusionary rule that would apply when law enforcement uses facial recognition in a manner that does not conform with the law.
I encourage you to consider bills H.135 and S.47 when you decide on further regulations of the use of biometric surveillance technology by government entities. We need strong regulations to ensure it doesn’t infringe on our civil rights and civil liberties, and this legislation provides an excellent model.
Thank you for your attention and consideration.
Sincerely,
Jonathan Cohn
Chair, Issues Committee
Progressive Massachusetts