MA Needs a Strong Regulatory Framework for Facial Recognition Technology

Tuesday, November 21, 2023

Chair Eldridge, Chair Day, and Members of the Joint Committee on the Judiciary:

I am submitting testimony today on behalf of Progressive Massachusetts. We are a statewide, member-based 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 back in 2020 in passing police accountability legislation. But there is more work to be done, including stronger regulations around the use of facial recognition technology. In that light, we urge you to give a favorable report to H.1728 and S.927: An Act to implement the recommendations of the special commission on facial recognition technology.

After passing limited regulations for facial recognition technology in 2020 (due to opposition to stronger regulations from Governor Baker), the Legislature created a special commission to study and recommend a regulatory framework. That commission, made up of diverse stakeholders, met, held hearings, and researched and discussed the issue. And that commission—including the AGO, the State Police, the NAACP, the ACLU, and CPCS (among others)—agreed on a set of recommendations, reflected in this bill.

From past debates, 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 provision of this bill help to address those problems by doing the following:

  • Requiring a warrant in order for police to conduct a facial recognition search—a necessary guardrail to protect privacy rights
  • Centralizing the use of facial recognition at the State Police in order to curb the potential for misuse, abuse, and wrongful arrests
  • Ensuring due process protections around the use of facial recognition technology in court cases
  • Prohibiting mass surveillance and emotion analysis in order to forestall the dystopian futures already happening in places like Russia and China

We urge you to give a favorable report to H.1728 and S.927. When the Legislature creates a commission to do the hard work of studying an issue, and that commission puts forth reasoned recommendations, it should be incumbent upon the Legislature to advance them.

Thank you for your attention and consideration.

Sincerely,

Jonathan Cohn

Policy Director

Progressive Massachusetts

Citizens for Juvenile Justice Debunks Myths about Metal Detectors and School Safety

Metal Detectors

By Stav Keshet

We all want students to feel safe at school. How can a student thrive if they don’t feel secure? In a recently released report titled Metal Detectors: “Security theater,” Not Safer Schools, Citizens for Juvenile Justice (CFJJ) answer an important question: do metal detectors in schools increase school safety? The answer: no. Research has shown that there is ‘insufficient evidence’ that metal detectors decrease crimes or violence in schools. So why do we use them? There are many reasons that factor in, including the fact that security systems got a boost from federal grant programs following the terrorist attacks of September 11.  For many, the “perception of safety” is a major motivator, but that perception is not anchored in reality or universally shared. Such claims around safety lack solid evidence, and make many students, especially students of color, feel less–not more–safe. These issues are not distinct to metal detectors, but demonstrate a larger pattern. Studies have shown that in addition to metal detectors, security cameras and the number of visible physical security measures tend to negatively affect perceptions of safety.

It is important to remember the effects of enhanced security on students’ mental health. As highlighted by the report, enhanced security measures have been documented to cause students to suffer from mental health impacts ranging from anxiety to post-traumatic stress disorder (PTSD), and other forms of psychological distress.”  At a time when our nation is struggling with an ongoing mental health  crisis, it is more important than ever to notice how oversurveillance makes it harder for students to find a sense of trust and of belonging, necessities for any healthy learning environment. School should be an enjoyable experience—not a scary one.

The report also looks at the intersection of mental health and racial discrimination. A key takeaway from the report was that even when controlling for multiple other variables, the concentration of students of color [Black, Latine, and Native] at the school was a predictor of whether or not schools decided to rely on more intense security measures And while all students’ mental health is negatively impacted by surveillance measures, Black, Latine, and Native students are often uniquely impacted. The report highlighted a study which found that “the use of surveillance methods, especially when applied disproportionately to students of color, …. skews minorities’ perceptions of their standing in our society, and sends harmful messages to members of all races that students attending majority-white schools enjoy greater privileges and have superior privacy rights.”

Studies have shown that enhanced security measures have negative impacts on teachers and staff, too. The report details several research and anecdotal evidence of school administrators who were concerned about the negative social consequences of metal detectors, in addition to the high financial cost to the school.A senior analyst for the campus safety group Safe Havens International said that: “metal detectors… can also create a prison-like feeling among students, have been linked to diminished academic performance, and, worst of all, don’t work well in school settings.” At the best, ineffective devices are wasting valuable funds in many schools across the United States. At the worst, many students are unable to fulfill their academic potential because instead of school- they attend a quasi- prison. 

MA Senate Votes to Reform Civil Asset Forfeiture, Juvenile Justice System

On Thursday, the MA Senate passed two bills to advance the “justice” component of our criminal justice system.

First, the Senate voted 31 to 9 to reform the civil asset forfeiture system, raising the legal bar that law enforcement must meet to seize and keep people’s money and property in suspected drug crimes. MA currently allows DAs the lowest legal burden of proof to keep property that’s seized, even when charges are never filed, and we’re the only state to do so.

The Senate also rejected 29 to 10 an amendment from Senator Bruce Tarr (R-Gloucester) to strip the language of the bill that would create a right to counsel for (1) defendants in related criminal cases (regardless of indigency) and (2) defendants in cases where there’s no related criminal case and who meet the indigency standard. 

Unfortunately, however, the Senate, on voice vote, adopted an amendment from Senator John Keenan (D-Quincy) to strip language from the bill that would have prevented funds seized through civil asset forfeiture from going to local police departments and DA offices and allocated them to the general fund instead. Allowing police departments and DA’s offices to keep the money creates a perverse set of incentives and also enables them to use the money for propaganda purposes.

The Senate also voted 32 to 8 to pass a bill (S.2942) that would increase opportunities for judicial diversion for youth.

Bruce Tarr (R-Gloucester) roll-called three amendments to limit the scope of the bill.

The first was to eliminate options for diversion for a long list of offenses. It failed 30 to 9, with Senators Barry Finegold (D-Andover), Anne Gobi (D-Spencer), Michael Moore (D-Auburn), Marc Pacheco (D-Taunton), Walter Timilty (D-Milton), and John Velis (D-Westfield) joining the 3 Republicans in voting for the amendment.

His second was to strip the offense of “assault and battery with a dangerous weapon” from the list of offenses for which diversion would be an option. This offense, as Citizens for Juvenile Justice explain in an earlier link, is widely invoked, with things like eggs or lotion having been called “dangerous weapons” in past cases. It failed 26 to 12. The aforementioned 9 were joined by Sen. Nick Collins (D-South Boston), Paul Feeney (D-Foxborough), and Mark Montigny (D-New Bedford).

His third amendment, to limit diversion opportunities to only a first offense, was defeated 33 to 6, with only Finegold, Montigny, and Pacheco joining Republicans.

PM in the News: Scorecards in Action

Alison Kuznitz, “Auditor candidate Chris Dempsey accuses rival Sen. Diana DiZoglio of a ‘falsehood born of willful ignorance,'” MassLive, May 4, 2022.

Dempsey, for his part during the forum, blasted DiZoglio for her 30% rating on the Senate’s police reform bill, as tracked by Progressive Massachusetts based on a string of amendments to the legislation. The organization, which has endorsed Dempsey for state auditor, gave other statewide candidates — including lieutenant governor candidates Sen. Adam Hinds and Sen. Eric Lesser, as well as gubernatorial candidate Sen. Sonia Chang- Díaz — a 100% rating.

“For Some Democratic activists, Healey’s positions on criminal justice give them pause”

Samantha Gross, “For some Democratic activists, Healey’s positions on criminal justice give them pause,” Boston Globe , March 20, 2022.

“When you are an attorney general, there tends to be a built-in relationship [with police] and she has definitely been too deferential to state and local police,” said Progressive Massachusetts policy director Jonathan Cohn. “There are many good things she has done as attorney general, but she has not been a leader on criminal justice issues.”

Inflicting Long-Term Harm on Protesters and Youth Does Not Improve Public Safety

Tear gas used on protestes

Tuesday, December 14, 2021

Chairman Eldridge, Chairman Day, and Members of the Joint Committee on the Judiciary:

My name is Jonathan Cohn, and I am the political director for Progressive Massachusetts, a statewide multi-issue advocacy group focused on fighting for a more equitable, just, democratic, and sustainable Commonwealth.

We believe in an approach to public safety that centers the public health and well-being of all. For that to be possible, we must end practices that inflict long-term punishment on individuals for crimes not committed and even for crimes committed, and must ensure that our policies procedures embody respect for the dignity of all.

We thus urge you to give a favorable report to H.4150: An Act banning the use of tear gas by law enforcement and to H.1531 / S.980: An Act relative to expungement of juvenile and young adult records.

H.4150: Banning Tear Gas

The use of chemical weapons is banned in war, and it should be banned on our streets.

Last year, amidst the outbreak of protests following the murder of George Floyd, the president of the American Thoracic Society called for a moratorium on the use of tear gas and chemical weapons by police: “They cause significant short- and long-term respiratory health injury and likely propagate the spread of viral illnesses, including COVID-19.” [1]

The American Academy of Ophthalmology likewise condemned the use of tear gas, noting that it causes “serious eye injuries, including hyphema, uveitis, necrotizing keratitis, coagulative necrosis, symblepharon, secondary glaucoma, cataracts and traumatic optic neuropathy and loss of sight.” [2]

Recent research has also shown that exposure to tear gas among soldiers increases the risk of contracting bronchitis. [3]

The use of tear gas to inflict short-term bodily harm and the possibility of long-term debilitation is similarly a perversion of the justice system: it enables police officers to inflict punishment for crimes not charged, not convicted, and not even committed. Police officers should not be given such extrajudicial power, and we should never be advancing forms of punishment that cause long-term debilitation if we care about the health of society as a whole.

At a time when many politicians and community leaders are discussing how to rebuild trust between communities and law enforcement, how to demilitarize policing, and how to rethink our approaches to and definitions of public safety, banning tear gas is a vital step.

H.1531 / S.980: Juvenile Expungement

In 2018, Massachusetts passed a comprehensive criminal justice reform bill that created an opportunity to expunge juvenile and adult criminal records for individuals whose offense was charged prior to their twenty-first birthday. This was an important step, but the bill limited the opportunity for expungement to individuals with one case on their record. Individuals with even just two cases on their record were ineligible.

These bills would eliminate the one-case restriction and instead limit eligibility by how long ago an individual had their last court case, allowing individuals to expunge their records if their last offense was three years (for misdemeanors) or five years (for felonies) and they have no subsequent court case since. They would reduce the number of offenses which are categorically ineligible for expungement, while preserving prosecutorial discretion. And they would reduce the time to seal juvenile records for non-adjudications and allow for automatic sealing of eligible

records.

A juvenile record can be a long-term barrier to accessing higher education, finding employment, or maintaining housing. Our corrections system should not be seeking to inflict such long-term negative consequences. We should be finding ways to best integrate individuals returning to society and ensure they have the opportunity for mobility, basic security, and meaningful participation in public life, all of which are beneficial for reducing recidivism.

Sincerely,

Jonathan Cohn                                  

Political Director

Progressive Massachusetts

[1] https://www.thoracic.org/about/newsroom/press-releases/journal/2020/tear-gas-use-during-covid-19-pandemic-irresponsible-moratorium-needed,-says-american-thoracic-society.php

[2] https://www.newswise.com/articles/nation-s-ophthalmologists-condemn-use-of-tear-gas-and-rubber-bullets

[3] https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5096012/

Another 60-degree Saturday in December: Why we need bold climate action

Saturday was another warm 60-degree day. In the middle of December.

It’s the type of weather that inspires an initial bout of excitement and then some existential dread: it is just one of many manifestations of climate change. And the erratic weather patterns, with a greater chance of storms and extreme weather events of all kinds, will wreak havoc on our infrastructure, our agriculture, and human health and well-being.

And we have to do something about it.

Coincidentally, tomorrow, the Joint Committee on Telecommunications, Utilities, and Energy committee in the MA Legislature is holding a hearing on significant climate legislation.

Of particular note: S.2170/H.3372: An act investing in a prosperous, clean commonwealth by 2030 (the “IPCC by 2030” bill, from Sen. Jamie Eldridge and Rep. Erika Uyterhoeven) and S.2136/H.3288 An Act transitioning Massachusetts to clean electricity, heating and transportation (the 100% Clean Act, from former Sen. Joe Boncore and Reps. Marjorie Decker and Sean Garballey).

Sign up to give testimony at tomorrow’s hearing — or just send in written testimony with our template here.

Flooding scene

These bills accelerate our path toward achieving 100% renewable energy, electrifying our transit systems, and greening our buildings, and they center equity in our response to climate change by making sure no workers are left behind.

The Next-Generation Roadmap bill, signed into law earlier this year, was an important step forward, but we need stronger goals as well as commitment to robust policies to make significant emissions reductions possible at all.

ALSO TOMORROW: Hearing on Banning Tear Gas

In 2020, the MA Legislature passed a comprehensive police reform legislation. The bill did many important things, but it had significant limitations.

Among the limitations: the bill’s failure to ban the use of tear gas by law enforcement. (The House took a vote on doing so; you can find how your state rep voted here.)

The use of chemical weapons is banned in war, and it should be banned on our streets.

Sign up here to give testimony to the Joint Committee on the Judiciary about the importance of passing H.4150: An Act banning the use of tear gas by law enforcement — or send written testimony here.

Cops using tear gas on protesters

Finish the Work of Last Year’s Police Reform Bill by Banning Facial Surveillance

Facial surveillance

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:

  1. 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

Protecting Civil Liberties in an Age of Facial Surveillance

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:

  1. 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

MA Needs to Ban Facial Surveillance

Facial surveillance

Last year, the Legislature passed a police accountability bill that created better standards for police professionalization as well as stronger limitations on the use of force. It was a step forward, but there is much more to be done. 

One such example? Banning Facial surveillance technologies. 

Facial surveillance technologies are notoriously racist, inaccurate, and harmful. Rather than banning such practices, the bill offered only narrowly tailored regulations and created a Commission to study whether to do more. 

They need to do more. 

The Commission will be hearing public comment this Friday at 11 am. 

Want to see stronger regulations of facial surveillance? You can sign up to give public testimony here — or submit written testimony here.