All Bark, No Bite: Washington’s 2021 Facial Recognition Regulation Lacks Enforcement Mechanism

By: Alex Coplan

Taking effect on July 1, 2021, Washington’s new facial recognition (FR) law will regulate state and local government use of FR technologies.  But will the new law be effective enough to protect your identity? The law serves as a middle ground between privacy advocates and government officials in favor of using FR programs. However, due to vague wording and lack of oversight, the bill’s intent may not always produce the desired results.

On its face, SB 6280 provides proper safeguards to prevent government use and abuse of FR technology. The law includes significant provisions requiring accountability and limitations on use, and signals the Washington legislature’s belief that FR use creates serious policy issues.

First, SB 6280 will apply to all state and local government agencies. This means that agencies operating in Washington must comply with the new law and be subject to its oversight. Some exceptions, however, include the Department of Licensing (DOL) and the Transportation Security Administration (TSA). While these agencies are not subject to SB 6280, they are required to disclose the use of FR technology if located in Washington.

Second, the law requires agencies to provide a notice of intent and produce an accountability report. In other words, government agencies must file notice to obtain and implement FR services. If approved, those agencies must provide accountability reports every two years. These reports disclose the capabilities of the FR system, the data types the system collects, the training procedures and security for protecting data, and how the system can benefit the community.

Third, and perhaps most importantly, SB 6280 requires “meaningful human review” when FR programs create “legal effects concerning individuals or similarly significant effects concerning individuals.” Meaningful human review requires review or oversight by one or more individuals who are trained in accordance with the act. Training includes coverage of the capabilities and limitations of the FR program, and how to interpret the program’s output. The bill considers “legal” or “similarly significant effects” to be decisions that result in the provision or denial of criminal justice, financial services, housing, education, employment opportunities, and other basic civil rights. Accordingly, if an individual faces a significant outcome following government use of FR, they have the right to meaningful human review.

Fourth, agencies must receive a warrant in order to use FR programs during real-time surveillance. This means government actors may not use FR programs simultaneously with a live video feed. Specifically, SB 6280 prohibits use of FR programs body-worn cameras used by law enforcement, meaning police may not use FR programs in the field without judicial authorization.

Companies like Microsoft—who create FR technology—favored and lobbied for the passage of SB 6280. Why, in a bill intended to limit FR use, would Microsoft approve of this legislation? Arguably, SB 6280 may be all bark, but no bite. While this law sounds effective, it lacks enforcement procedures.

For example, the accountability reports may not provide much accountability. At this point, the reports are not required to be approved by any regulatory or legislative body. As a result, there is no enforcement mechanism for the provision of this bill. If an agency chooses to not follow the procedure, who will stop them?

Further, the “meaningful human review” provision lacks substantial definition. The subsection defining this phrase is a single sentence, which fails to provide any direction for decision making. Further, the provision does not require review from any third party, allowing agencies to review any potential misconduct themselves, with their own employees.

Additionally, SB 6280’s warrant requirement only covers real-time identification, so agencies may freely use FR technology on previously shot footage without obtaining a warrant first. By allowing agencies to engage in this practice without a warrant, SB 6280 subjects the public to unchecked surveillance by law enforcement.

Washington enacted SB 6280 to provide compromise and regulation to an emerging field. However, the law lacks sufficient procedures for enforcing violations. Without those procedures, or a moratorium on FR use, government agencies can abuse these technologies to the detriment of every Washingtonian.

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