Del. Ken Plum: Facial Recognition as a Legislative Issue

This is an opinion column by Del. Ken Plum (D), who represents Reston in Virginia’s House of Delegates. It does not reflect the opinion of Reston Now.

One of the side-effects of the global pandemic and the resulting quarantine has been the difficulty of recognizing others after months of not seeing each other in person. There is the normal aging process that can alter our looks, along with little or no access to barbers and stylists, and a decline in interest to apply the usual make-up since no one is going to see you up close. All this can leave others looking quizzically at you with an “I believe I know you” look. Longer hair without additional coloring and a mask covering half your face can make it a challenge sometimes to even recognize our friends.

Facebook has or had a system to alert you if your photo appeared on someone else’s page. I have gotten dozens of such messages which when I investigated them found photos of persons who clearly were not me and for which I could find no resemblance. As clever as the technologists were who developed it, the use of facial recognition leaves serious questions about its application, particularly in law enforcement.

The challenges of recognizing even someone you know under today’s difficult conditions and the shortcoming of the systems now being used have raised questions about the propriety of collecting large numbers of photos and using them in criminal investigations. In the Washington Metropolitan area there is a little-known program called the National Capital Region Facial Recognition Investigative Leads System that has 1.4 million photos that can be used in criminal investigation but for which civil rights groups have little information.

Concerns about facial recognition technology came to the attention of Virginia legislators last year, and in the recent legislative session we passed a bill signed by the governor to require agencies that plan to use the technology to get specific approval of the legislature. With the high error rate in correctly identifying minorities among its other shortcomings, along with the civil liberties issues it raises, it is unlikely that such approvals are to be forthcoming.

Requests for legislation involving the use of new technologies are most often referred to the Joint Commission on Technology and Science (JCOTS) which was created from legislation I proposed and of which I was chair for many years. Learning about new technologies is always interesting but precautions must be taken when there are issues of civil liberties involved.

JCOTS’ usual procedure is to appoint a technical advisory committee that may involve as many as 25 persons from the advocate community, adversaries of the proposals, representatives from academia, and other interested parties to work through the issues involved.

The legislature will not get involved in proprietary issues around a particular technology but instead will involve itself with the civil liberties issues, impact on the community, and trade concerns, among other matters. Regardless of the complexities involved with a technology it is imperative that the legislature provide appropriate safeguards for the community.