House Bill 492 — Facial recognition technology

House Bill 492 — Facial recognition technology

by
Parrish Miller
February 20, 2020
Parrish Miller
February 20, 2020

Bill description: HB 492 regulates and limits the use of facial recognition technology in Idaho.

Rating: -5

Does it give government any new, additional, or expanded power to prohibit, restrict, or regulate activities in the free market? Conversely, does it eliminate or reduce government intervention in the market?

It should be noted that the following regulations apply in all cases where facial recognition technology is used, regardless of whether it is used for security, advertising, or even just for entertainment purposes.

HB 492 requires "processors that provide facial recognition services" to allow third parties to test the services for "accuracy and unfair performance differences across distinct subpopulations." 

It further requires that "if the results of such independent testing identify materially unfair performance differences across subpopulations … the processor must develop and implement a plan to mitigate the identified performance differences."

(-1)

HB 492 requires processors who provide facial recognition services to "prohibit, in the contract by which the controller is permitted to use the facial recognition service, the use of such facial recognition services by controllers to unlawfully discriminate under federal or state law against individuals or groups of individuals." Dictating the terms of a private contract is not the proper role of government. Moreover, if an action is truly unlawful, there is no reason why it also needs to be prohibited by a private contract. 

(-1)

HB 492 requires controllers to "provide a conspicuous and contextually appropriate notice whenever a facial recognition service is deployed in a physical premises open to the public." This regulation limits the rights of a property owner to deploy facial recognition technology without posting notices, which is especially problematic when there is a vital purpose for the use of such technology to be in secret. 

(-1)

HB 492 requires controllers to "obtain consent from an individual prior to enrolling an image or a facial template of that individual in a facial recognition service used in a physical premises open to the public."

HB 492 defines consent as "a clear affirmative act signifying a freely given, specific, informed, and unambiguous indication of an individual's agreement to the processing of personal data relating to the individual, such as by a written statement, including by electronic means or other clear affirmative action."

This regulation effectively forbids property owners from deploying and using a comprehensive facial recognition technology system within their own property — even with a "conspicuous and contextually appropriate notice," — if the owner does not receive clear consent from those the technology is used on. 

(-1)

HB 492 requires controllers to "test the facial recognition service in operational conditions" prior to its deployment. It further mandates that "controllers must take commercially reasonable steps to ensure best quality results in operational conditions by following all reasonable guidance provided by the developer of the facial recognition service." 

(-1)

Does it directly or indirectly create or increase penalties for victimless crimes or non-restorative penalties for nonviolent crimes? Conversely, does it eliminate or decrease penalties for victimless crimes or non-restorative penalties for non-violent crimes?

HB 492 requires any controller or processor who violates any of these regulations be "subject to an injunction and liable for a civil penalty of no more than two thousand five hundred dollars ($2,500) for each violation or seven thousand five hundred dollars ($7,500) for each intentional violation."

(-1)

Does it violate the spirit or the letter of either the U.S. Constitution or the Idaho Constitution? Examples include restrictions on speech, public assembly, the press, privacy, private property, or firearms. Conversely, does it restore or uphold the protections guaranteed in the U.S. Constitution or the Idaho Constitution?

An additional problem with HB 492 is that it conflicts with existing laws covering photographs. With few exceptions, photographers are presumed to own a photograph taken on their own property or on property open to the public. Photographers, therefore, have a property right for the photos they take. HB 492 works against that property right. It limits how those who own photographs may use this property if facial recognition systems are in place. It does so by stating that a photographed individual has the right to (among other things) "delete an image or a facial template of the individual that has been enrolled in a facial recognition service used in a physical premises open to the public."

(-1)

Despite its many problems, HB 492 is not entirely bad. The bill does put some reasonable limitations on how government agencies use facial recognition technology. Specifically, the bill forbids them from using the technology to engage in ongoing surveillance "unless such use is in support of law enforcement activities, may provide evidence of a serious criminal offense," and one of the following conditions applies:

  • "A search warrant has been obtained to permit the use of the facial recognition service for ongoing surveillance."
  • "The agency reasonably determines that ongoing surveillance is necessary to prevent or respond to an emergency involving imminent danger or risk of death or serious physical injury to a person, but only if written approval is obtained from the agency's director or the director's designee prior to using the service and a search warrant is subsequently obtained within forty eight (48) hours after the ongoing surveillance begins."

(+1)

Additionally, HB 492 requires government agencies to keep records of how they use facial recognition technology. They also must disclose its use on a criminal defendant to that defendant in a timely manner prior to trial.

(+1)

Analyst's Note: HB 492 defines "facial recognition service" as "technology that analyzes facial features and is used for recognition or persistent tracking of individuals in still or video images." The "or" in this definition is very important because the "persistent tracking" is not a required component of the definition. Any "technology that analyzes facial features and is used for recognition" falls under the regulations contained in HB 492. It doesn't require that the technology be used for any particular purpose. 

The definition applies to phones, TVs, video game consoles, and other electronic devices that allow a user to access or unlock a device via a facial scan. Even technology that attempts to help users "auto tag" their own photos (such as is used by Facebook) would fall under this broad definition.

Fundamentally, HB 492 attempts to regulate and limit the use of facial recognition technology without grasping the full context, scope, or uses of such technology. The regulations imposed by this bill appear to presume that the primary private sector purpose for it will be security and surveillance, but they ignore its potential as entertainment or as a means of deploying targeted advertising.  

Additionally, HB 492 appears to presume that the images used for facial recognition technology will be originally captured by the facial recognition technology rather than obtained from existing sources such as commercial vendors, social media sites, or the public domain. 

It further appears to presume that images, which are newly captured by facial recognition technology, will be compared to images in a database maintained by the processor or controller of the facial recognition technology. The code includes the language "an image or a facial template of the individual that has been enrolled in a facial recognition service" and similar references. While it is possible for facial recognition technology to work in this manner, it is also possible that captured images will be dynamically compared to preexisting images found online from myriad sources. 

The errors and omissions in HB 492, combined with the severe penalties imposed on private individuals and businesses who run afoul of its poorly worded regulations, make HB 492 a dangerous piece of legislation. 

It is appropriate for the state to limit the use of a potentially invasive surveillance technology by state agencies and law enforcement. But it is inappropriate to impose onerous regulations on and violate the property rights of individuals and businesses who use such technology on their own property for their own purposes.

Idaho Freedom Foundation
802 W. Bannock Street, Suite 405, Boise, Idaho 83702
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