A state commission wants new limits on how police use facial recognition

A commission has proposed recommendations that the Judiciary Committee's House chairman says will balance implications of facial recognition technology on individual privacy rights, and the "proper role" it can play in the criminal justice system.

While legislative leaders have not flagged it as a near-term priority, the Legislature in the 2020 policing reform bill outlined parameters on the use of the technology by law enforcement and created the commission to investigate and make recommendations governing usage of facial recognition by government. Now, that panel has returned with ideas for the Legislature to consider.

The recommendations include:

  • Limiting and regulating law enforcement's acquisition, possession, access or use of any facial recognition system, or authority to enter into a contract for those purposes, absent express statutory authorization;
  • Requiring a warrant issued by a judge based on probable cause that an unidentified or unconfirmed individual in an image has committed a felony before permitting a facial recognition search, with exceptions for emergencies or to identify a deceased person;
  • Prohibiting the use of "emotion recognition" and application of facial recognition technology in live surveillance and tracking;
  • Centralizing law enforcement use of facial recognition to a state-level facial recognition operations group within the Massachusetts State Police;
  • Including explicit requirements for notification to defendants identified using facial recognition technology and the admissibility of information received from an unlawful facial recognition search in criminal proceedings;
  • Imposing more stringent data collection and reporting requirements on the use of the technology.

The commission met regularly last year after convening in early 2021.

"This report makes clear and deliberate recommendations that account for the complexities of emerging facial recognition technology and its implications for individual privacy rights on one hand, and the proper role it can play in our criminal justice system on the other," said Judiciary Committee Co-Chair Rep. Michael Day of Stoneham. "If the Legislature adopts these recommendations, I believe it will strike the correct balance between those competing interests and will set appropriate guidelines for law enforcement's use of this technology."

The ACLU of Massachusetts said it supports the recommendations and "tighter regulation" of face surveillance technology.

"It is critical to get this balance right because face surveillance technology poses profound and unprecedented threats to our privacy and other basic freedoms — and is particularly dangerous for communities of color and other marginalized groups," said Kade Crockford, Technology for Liberty program director at the ACLU.

Cape and Islands District Attorney Michael O'Keefe dissented, comparing matches to tips or clues. "The use of this technology, like all new technology, should be regulated and appropriate guardrails established but police must be allowed to do their job," O'Keefe wrote in a letter.



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