Tuesday, November 23, 2021
Dear Chair Eldridge, Chair Day, and Members of the Joint Committee on the Judiciary:
I am submitting testimony today on behalf of Progressive Massachusetts. 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. In that light, we urge you to give a favorable report to H.135/S.47: An Act to Regulate Face Surveillance.
Last year, the House and Senate adopted a strong framework for government use of face surveillance in the Commonwealth, but the legislation was significantly weakened by Governor Baker before ultimate passage. H.135 and S.47 are nearly identical to the original language passed by the House and Senate. They would allow controlled use of this technology for legitimate police investigations while strengthening protections for our privacy, freedom of speech, racial justice, and civil rights.
From last year’s debate, I expect that you are familiar with the myriad problems posed by facial surveillance, with regard to both use (e.g., its track record of inaccuracy, especially in distinguishing between Black and Brown individuals—and the dangers that poses) and its susceptibility to abuse (e.g., the ease with which officers could take advantage of data for personal reasons having no relation to public safety).
The current regulations on facial surveillance are deficient in several key ways:
- 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, H.135 and S.47provide for useful policy solutions to these problems. They 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.
We encourage you to give a favorable report to H.135 and S.47. 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
