House Bill 2031, introduced by Del. Lashrecse Aird, D-Petersburg, imposes what she called “a de facto ban” on local police using facial recognition technology by requiring the General Assembly pass a law before a police department or other law enforcement agency can use it. Her bill, which won bipartisan support in both the House of Delegates and the State Senate, also requires a police department to have total control of the technology, which is all but impossible given how tech companies are offering facial recognition services.
“I’m thrilled,” Aird said.
It’s tougher legislation than what she introduced a little more than a month ago. Her original bill would have banned most law enforcement agencies from using facial recognition technology unless city or town leaders pass an ordinance authorizing its use. In the case of campus police departments, a governing board would have to approve it.
Now, city and town councils have been stripped of any say-so, and only state lawmakers can give the OK.
The Virginia State Police, which has denied using facial recognition technology and said it has no plans to do so, is not covered by the legislation.
Aird said she considered an outright ban before the session but toned down her legislation into a “half measure” she thought could win enough support in the Senate, where she thought passage would be more of a challenge. So she was surprised when Sen. Ryan McDougle, R-Mechanicsville, introduced amendments making it harder for law enforcement to use the technology.
How and when police use facial recognition has to be “highly regulated and very restricted,” McDougle said, adding that he’s worried bad picture quality or bad actors manipulating images could lead to false positives.
And giving each city and town power to decide for themselves would create an unacceptable hodgepodge of practices and policies, he said: “This is too important an issue … the whole state needs to be operating under the same system.”
Aird said the bill was the result of The Virginian-Pilot’s investigation into how the Norfolk Police Department had been using Clearview AI, a controversial facial recognition technology, without the knowledge of the mayor and most City Council members.
“(That) really struck me as unacceptable,” the delegate said.
In November 2019, Norfolk gang detectives signed up to try Clearview AI’s app. Over the next three months, Norfolk police used Clearview in about 20 investigations, and it helped them make nine arrests, Norfolk Police Chief Larry Boone said. Those detectives were so impressed with how the technology identified unknown suspects and helped solve crimes that they pushed the top brass to shell out thousands of dollars a year to make facial recognition one of their permanent crime fighting tools.
But Boone killed that effort and ordered everyone in the department to stop using the technology. In an interview with The Pilot, the police chief said the public needed to know and talk about such a hot-button issue before police permanently added it to its investigative repertoire.
“That can be perceived to be so intrusive—Big Brother is watching,” Boone said in the June interview. “Our current society isn’t quite ready for that.”
The Norfolk Police Department was one of more than 600 law enforcement agencies across the U.S. that, largely without public scrutiny, started using Clearview between Jan. 1, 2019, and January 2020, according to a New York Times investigation. In some cases, top brass in those departments didn’t know their officers were using Clearview because officers were able to sign up and start using the app with little more difficulty than downloading Facebook or Twitter.
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