How a basic iPhone feature scared a senator into proposing a facial recognition moratorium

Recode chatted with Sen. Jeff Merkley about everything from his iPhone to China’s treatment of the Uighurs.

With just a picture of your face, someone armed with facial recognition software could find everything there is to know about you, from your name to your address to information about your family. That such tech could usher in an age of constant surveillance has many spooked. Recode recently chatted with Sen. Jeff Merkley (D-OR), who recently introduced a bill aimed at curbing government use of facial recognition software after he noticed the technology at work on his iPhone — and saw the scope of its power in China’s use of it against the country’s largely Muslim Uighur minority.

News earlier this year that Clearview AI, a mysterious facial recognition startup, has scraped more than 3 billion photos from the web and social media, and provided that tool to more than 600 law enforcement agencies, has only fueled further concern. Several cities have now banned the tech, and late last month, 40 groups called for the use of the tech to be suspended.

But US lawmakers haven’t yet moved to regulate facial recognition, though there are ideas. Proposals include prohibiting the tech in federally assisted public housing and requiring that commercial users of the tech gain consumers’ consent to use their data. Now there’s Merkley’s plan, in conjunction with Sen. Cory Booker: forbid the use of the tech by federal law enforcement without a court-issued warrant until Congress comes up with better regulation.

Their bill, called the “Ethical Use of Facial Recognition Act,” would establish a commission to study the technology and propose guidelines; it would prohibit sending federal money to state and local governments to “invest in facial recognition software, purchase facial recognition technology services, or acquire images for use in facial recognition technology systems.” But the American Civil Liberties Union’s Neema Singh Guliani warns that “a warrant doesn’t solve the fundamental concerns with face recognition.” She points to research showing that the tech can be biased and more inaccurate when applied to women and people of color, as well as the risk that the tech endangers our civil liberties and privacy.

Merkley told Recode that the technology may be useful in investigations and that we can’t eschew it entirely. But he’s also fearful that excessive use of the tech will become a tool for “government tracking” of civilians.

The following interview has been edited for length and clarity.

Rebecca Heilweil

To start, do you want to describe what you’re trying to do with your new proposal?

Sen. Jeff Merkley

I’m basically trying to take on the federal government from being a Big Brother government that tracks Americans everywhere you go. It’s a technology that’s spreading very, very quickly, and it has huge implications for privacy and for the power of government. And I think we should hit the pause button.

So my bill basically says look, unless you have a warrant, you, the federal government, can’t use facial recognition as a tool. And you can’t use it until Congress explicitly authorizes its functions. … And to prepare the foundation for that conversation, I’m creating a commission to come back within 18 months for recommendations. So, it’s the sort of thing — if we don’t act and hit the pause button — it just spreads so quickly, so powerfully, that it’s very hard to turn back the clock.

Rebecca Heilweil

Was this in response to the news about Clearview AI and the New York Times report about law enforcement using that facial recognition tool?

Sen. Jeff Merkley

Actually, that came after I started working on this bill. The point that really caught my attention was how the Chinese are using facial recognition for the Muslim minority, where they have about a million people enslaved and they track them everywhere they go. It makes you understand what a powerful tool this is. Unlike fingerprints, which are hard to collect and you have to be very deliberate, you can capture people’s facial image with cameras set up everywhere, on streets, on doorways, in public settings, and so on and so forth. And databases can be combined, and of course, as Clearview is doing already, combining massive amounts of data.

And it just becomes so easy to track. The temptation is always to let the government do more and more. The other thing that really caught my attention was, on my iPhone, when I was searching for a picture and stumbled into the fact that you could look and — when you hit the search function — different pictures will pop up of people. And you can hit that person and every picture that you’ve taken with that person in it will show up. Instant! And I’m just going, “Wow.”

I was so stunned at how well it works. So, for example, when I searched on a picture of my wife or my daughter, even if their face is turned sideways, even if it’s in the shadows, it still seems to find them. And I’m just stunned at how well it works. So it’s extremely, extremely powerful.

Rebecca Heilweil

So the proposal has an exception for warrants. Why leave that in when other cities have banned the technology entirely?

Sen. Jeff Merkley

Well, a warrant is about authorizing a search where you have presented evidence of a crime. That seems a place where if you can catch somebody who is killing people or raping people or doing other serious injury to fellow citizens, I think that’s a legitimate use of the tool, one that citizens would probably overwhelming support in order to stop a criminal activity.

Rebecca Heilweil

But some would say that a warrant doesn’t address the bias and accuracy problems. As the National Institute of Standards and Technology has shown, these tools can have accuracy problems, especially when they’re applied to minority groups.

Sen. Jeff Merkley

In the case of a warrant, it’s an investigative tool. It puts you on the track of potential suspects, but it doesn’t create a case in and of itself. It takes a lot more evidence before a grand jury is going to proceed to say this person needs to be put on trial for something. And the victims may well be individuals from minority groups, or otherwise. I think, no matter who the victims are, folks would appreciate that this is a tool to track down someone doing injurious things.

To think of it in the context of if your family member was horrifically hurt by someone who had already horrifically hurt others, and we didn’t utilize a picture that was taken by someone from a video camera or something when they entered a store and figure out who that person is, you would go, “Why didn’t we?” Why didn’t we stop that person before they hurt someone else?

So I think that when there is a warrant process, that’s very different than just the everyday tracking of Americans. Those are different ends of the spectrum.

Rebecca Heilweil

It seems like what you’re saying is that you see a difference between constant surveillance and using facial recognition in an investigation.

Sen. Jeff Merkley

That’s right.

Rebecca Heilweil

Is there a federal agency already using this technology that you’re most worried about?

Sen. Jeff Merkley

Well, we know that the FBI uses it, ICE uses it … I’m just concerned [about] these agencies that have the ability to access massive databases. And some of those databases are enormous in the private sector, as you had referenced, and are being sold. I’m very concerned about the government getting into this business of tracking everyone. I don’t think the government should be able to know where we go in our daily lives. And I’m very concerned about the private sector, too, but this bill is a way of starting the conversation in the place that I think is the biggest concern, and that’s government tracking.

Rebecca Heilweil

Any last comment? I’d like to give you the final word.

Sen. Jeff Merkley

If we don’t get in front of this issue and start holding hearings and debates and wrestling with it, it is going to grow to be so widely used so quickly that we will never stop it. And we will live in a constant surveillance state forevermore. Let’s not let that happen.

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