Staff Opinion: LB 1091 Right for Nebraska

Thu, 03/18/2021

Nebraska Senator Tony Vargas has introduced LB 1091 in the state unicameral, a bill that would ban the use of facial surveillance technology by any “government entity” in the state of Nebraska. This article looks at the facts and concerns surrounding the use of facial recognition technology— particularly with regard to its utilization by school districts and law enforcement agencies, concluding that a complete government ban of the kind proposed by LB 1091 is, at least at this time, in the best interests of the state of Nebraska and its people.

To hear a full discussion of facial recognition technology by leading experts in the field of law and technology, listen to Episode 10 of the Nebraska Governance and Technology Center’s (NGTC) podcast series, Tech Refactored.

For a 2-5 minute overview of the discussion, take a look at my review of the episode on our blog, The Record.

Across the United States, cities, states, and universities have passed or are considering bans on the use of facial recognition technology based on concerns that, when it comes to keeping their communities and students safe, the use of facial recognition technology by schools and law enforcement has the potential to do more harm than good. Facial recognition uses computer algorithms to pick out “specific, distinctive details about a person’s face,” turns those details into data points, and then compares that data against a database in an attempt to identify an individual. More recently, facial recognition technology has also been used in other ways, including as part of K-12 remote learning, largely in an effort to detect students who might be cheating on an exam. In Nebraska, Senator Tony Vargas has introduced LB 1091, a bill that would ban the use of facial recognition by any state government entity. This bill is a justified prohibition of a technology that should be of serious concern to all members of the unicameral, regardless of their ideological commitments.

Among the most problematic settings in which facial recognition technology has been utilized is K-12 schools. To be sure, school districts are responding to real concerns when they make the decision to utilize facial recognition technology. Proponents of its use have claimed, with little evidence, that facial recognition technology is an effective tool in preventing mass shootings. However, several leading facial recognition technology providers, including RealNetworks, Athena Security, and Trueface have concluded that facial recognition technology is not effective in stopping mass shooting events, both from a logistical standpoint and because mass shootings nearly always involve students connected to the schools in which they occur. Limited school resources do not exist in a vacuum, and every dollar spent on expensive, ineffective facial recognition technologies is a dollar that is not being invested in other solutions, like Threat Identification and Assessment Programs that have been demonstrated to be effective in preventing mass shootings and are endorsed by the Department of Homeland Security, the Department of Education, and the Federal Bureau of Investigation.  

Also problematic is the fact that many school districts’ contracts with facial recognition technology providers allow student image data to be used for “product improvement” purposes. This means that these companies are allowed to maintain “large numbers of photographed faces with associated names and other personally identifiable information” that can be used by facial recognition technology companies in order to improve their ability to, for example, identify instances of cheating. As data theft becomes increasingly common, K-12 students whose school districts opt to use facial recognition technology put their students in the position of trusting tech companies with their personal data, including their images without their meaningful consent; an inherently risky proposition.

Turning to law enforcement, facial recognition technology is particularly dangerous when it is paired with location data, that is, information regarding where and when an individual has been observed on a surveillance camera. The prospect of a massive, interconnected system of cameras capable of tracking an individual’s movements isn’t a concept limited to dystopian science fiction novels or police states like North Korea; the metropolitan area of London alone has 627,727 security cameras that are capable of tracking an individual’s movements throughout the city. Commenting on the capabilities of Clearview AI, a U.S. based facial-recognition company that is used by law enforcement to compare images against Clearview’s database of three billion internet-sourced facial images, the ACLU has stated that “Clearview’s technology gives government the unprecedented power to spy on us wherever we go — tracking our faces at protests, AA meetings, political rallies, churches, and more. Accurate or not, Clearview’s technology in law enforcement hands will end privacy as we know it.”

Moveover, studies have shown that machine learning algorithms disproportionately misidentify women and people of color. This phenomena has led the world’s largest scientific computing society, the Association for Computing Machinery in New York City, to call for a suspension of private and government use of facial recognition technology because of “clear bias based on ethnic, racial, gender, and other human characteristics. While misidentification by law-enforcement may seem to those unfamiliar with the phenomena to be more of an irritant than a real threat, evidence indicates that police stops result in a decrease in community trust of police and decreased academic performance, particularly among young men of color.

Guarantees from law enforcement agencies that they will use facial recognition surveillance systems responsibly are not enough — once a system of mass surveillance is in place, a simple change in government policy is all it takes for a formerly restrained system to be repurposed into a powerful instrument of state mass surveillance. Even where legal constraints in the ways in which technology are used by governments are in place, precious little prevents individual actors from illegally misusing that technology in ways that we would find objectionable.

Leaving aside the question of whether facial surveillance can ever be limited in a way that adequately protects individual civil liberties (a prospect of which I am dubious), it is clear that it is currently a technology whose benefits are strongly outweighed by its drawbacks. Nebraskans’ value their liberties and the privacy rights of their children, and the solution of allowing the state the unfettered ability to use facial recognition in a misguided effort to protect our safety, is no solution at all. 

Opinions expressed herein are those of the author and do not reflect the opinion of the Nebraska Governance and Technology Center, or other members of the staff.

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