If Congress doesn't take legislative action, the FBI's vast and growing facial recognition database could someday soon allow the government to track Americans' "every move" in a breathtaking, nationwide violation of the Fourth Amendment.
That was the takeaway of a scathing hearing in the Congressional Oversight Committee on the FBI's use of facial recognition technology last week.
"It is important to place meaningful checks on government use of face recognition now before we reach a point of no return."
—Jennifer Lynch, EFF
In June, the FBI's use of such technology was the subject of a damning report from the Government Accountability Office (GAO), which revealed that the agency's use of the technology was much more far-reaching than privacy advocates had suspected: 30 million photos are contained in the database, and the agency has access to hundreds of millions more—and the majority of subjects committed no crimes.
"No federal law controls this technology, no court decision limits it. This technology is not under control," Alvaro Bedoya, executive director of the Center on Privacy and Technology at Georgetown Law, told the Guardian.
Indeed, Georgetown discovered last year that 50 percent of Americans are "already in a face recognition database accessible to law enforcement," as Electronic Frontier Foundation senior staff attorney Jennifer Lynch noted in her written testimony (pdf) during the hearing last week.
Lynch detailed the stunning scope of the FBI's photo collection. In addition to collecting criminal and civil mug shots, the agency currently has "memorandums of understanding" with 16 states that mean every driver's license photo from those states is accessible to the agency—without the drivers' consent. The FBI also has access to photos from the U.S. State Department's passport and visa records.
Lynch argued that "Americans should not be forced to submit to criminal face recognition searches merely because they want to drive a car. They shouldn't have to worry their data will be misused by unethical government officials with unchecked access to face recognition databases. And they shouldn't have to fear that their every move will be tracked if face recognition is linked to the networks of surveillance cameras that blanket many cities."
"But without meaningful legal protections, this is where we may be headed," Lynch stated. "Without laws in place, it could be relatively easy for the government and private companies to amass databases of images of all Americans and use those databases to identify and track people in real time as they move from place to place throughout their daily lives."
The discomfort with the FBI's vast data collection is bipartisan, it seems, with Republicans as well as Democrats voicing outrage about the agency's activities.
"I'm frankly appalled," said Rep. Paul Mitchell (R-Mich.). "I wasn't informed when my driver's license was renewed my photograph was going to be in a repository that could be searched by law enforcement across the country."
Beyond the secret mass data collection, other ethics concerns arose when it emerged that the system misidentifies people about 15 percent of the time. It also misidentifies black people, women, and young people more often than white people, men, and older people, respectively.
Rep. Elijah Cummings (D-Md.) "called for the FBI to test its technology for racial bias," the Guardian reported, "something the FBI claims is unnecessary because the system is 'race-blind.'"
"This response is very troubling," Cummings said. "Rather than conducting testing that would show whether or not these concerns have merit, the FBI chooses to ignore growing evidence that the technology has a disproportionate impact on African Americans."
Even private companies who have created such technology disagree with the FBI's use of it, the Guardian reports. The newspaper spoke with Brian Brackeen, the CEO of Kairos, a company that "helps movie studios and ad agencies study the emotional response to their content and provides facial recognition in theme parks to allow people to find and buy photos of themselves."
Brackeen refuses to allow the government access to his technology, stating: "There has got to be privacy protections for the individual."
While the government isn't using more advanced surveillance techniques now, that doesn't mean it never will.
"While we don't yet appear to be at point where face recognition is being used broadly to monitor the public, we are at a stage where the government is building out the databases to make that monitoring possible," noted Lynch. "It is important to place meaningful checks on government use of face recognition now before we reach a point of no return."
Watch the full hearing here: