In Attempt to Ban Facial Recognition Technology, Massachusetts Could Inadvertently Ban Facebook, iPhones, and More

To date, three California cities—San Francisco, Oakland, and Berkeley—as well as Somerville, Massachusetts have enacted bans on facial recognition technology. But as other legislators rush to pass copycat legislation, they are risking not only cutting off their states from many of the substantial benefits of using facial recognition technology in government, but also introducing legislation that could have quite far-reaching unintended consequences.

The Massachusetts Joint Committee on the Judiciary will hold a hearing on October 22 in which it will consider S. 1385, a law that would enact a statewide ban of government use of facial recognition technology. This bill is the latest overreaction to the fear, uncertainty, and doubt that activists have managed to harness into legislative action. While the goal of this legislation is to make Massachusetts the first in the nation to enact a statewide ban on government use of the technology, the actual impact could be much broader—as the legislation appears to be so hastily drafted that it could effectively prevent any government official from using any technology with facial-recognition capabilities, including Facebook, iPhones, and more.

First, it must be noted that a ban on facial recognition technology is senseless. The main objection is that it is putting the United States on a path to quickly become a totalitarian police state where a citizen’s every movement is tracked by the police in real time and a ban is the only way to avoid this otherwise unavoidable dystopia. Indeed, the bill’s preamble claims that facial recognition technology “poses unique and significant civil rights and civil liberties threats.” But this slippery-slope argument does not stand up to scrutiny, as the Constitution still protects Americans from government abuse of this or any other technology. Moreover, the same groups opposing facial recognition technology have relied on this argument about many other technologies in the past, such as red-light cameras and license plate readers, yet widespread abuse of these technologies has not come to pass for the simple reason that Americans live in a democracy where their rights are protected by law.

The proposed ban would limit Massachusetts from taking advantage of many positive uses of the technology. Police around the nation are already using it to search online for missing children; improve security at airports, stadiums, and schools; and quickly identify victims, witnesses, and perpetrators of crimes. The technology is especially indispensable in situations where time is of the essence, such as identifying active shooters or bombing suspects. Banning facial recognition technology would tie the hands of law enforcement if there were ever another scenario like the 2013 Boston Marathon bombing.

But perhaps the biggest problem with the Massachusetts proposal is that the legislation may have significant unintended consequences. The legislation states that “it shall be unlawful for the Commonwealth of Massachusetts or any Massachusetts government official to acquire, possess, access, or use any biometric surveillance system.” Unfortunately, the legislation defines “biometric surveillance system” very broadly as “any computer software that performs face recognition or other remote biometric recognition.”

This loose definition would likely include many common devices and online services that process biometrics. For example, Facebook uses facial recognition for suggesting friends to tag in photos, so this ban would be bad news for any Massachusetts government staff posting social media updates. And what about government employees who use an iPhone? Unless Apple starts making a special Massachusetts government edition with its FaceID secure authentication feature removed, these staff are going to have to leave their phones at home. This proposal is not only a bad bill, it is also badly written.

Rather than put up a roadblock for facial recognition, a much better option would be to move forward with guardrails on the technology. For example, legislators could require government to only procure facial recognition technology if it meets certain performance requirements and require law enforcement agencies to develop best practices to ensure accountability and oversight. Doing this would also be smart politics. In a poll last December, fewer than one in five Americans agreed with strictly limiting facial recognition technology if it came at the expense of public safety.

Facial recognition technology is reliable and effective, and it will increasingly be integrated into a variety of commercial and government services, including those used to make communities safer and consumers and businesses more secure. Unless Massachusetts plans to let these innovations pass it by, legislators should go back to the drawing board on this proposal.