There were moments of gotcha glee as insurrectionists who marauded through the Capitol on Jan. 6, 2021, were identified by a combination of savvy citizens and law enforcement using facial recognition technology to match abundant crowd shots and social media selfies with names and addresses of offenders.
It was a good day for the good guys.
In Russia today the same technology — reinforced by cameras in the Moscow subway, in schools, and throughout the country — allows President Vladimir Putin to better track his political opponents, journalists, and protesters without restraint, according to Human Rights Watch.
So how to strike a balance? How to use the technology for good without it becoming the Big Brother of dystopian nightmares?
For the better part of a year, a special legislative commission that grew out of the landmark Police Reform Bill has been wrestling with that question as it relates to law enforcement in Massachusetts. Last week the commission released its report and, with it, a baker’s dozen recommendations aimed at striking that balance and putting guardrails on the use of facial recognition technology — while there is still time to do so.
And by and large, they got it right — aiming to head off the possibility of an outright and counterproductive ban while reining in what might have been a free-for-all on personal privacy.
The commission, headed by the cochairs of the Legislature’s Judiciary Committee, Representative Michael Day and Senator Jamie Eldridge, included representatives from law enforcement and academia, and civil liberties advocates. In the end, there were only four dissenters, including Cape and Islands District Attorney Michael O’Keefe, who noted in a letter, “The use of this technology, like all new technology, should be regulated and appropriate guardrails established, but police must be allowed to do their job.”
Generally, the commission proposes to centralize use of facial recognition technology, vesting a special new unit within the State Police with the power to perform a search or request one from the FBI. Of course, the State Police are indeed the only statewide law enforcement agency Massachusetts has, although a series of scandals in the ranks has done little to inspire public trust and confidence.
But the State Police have been using facial recognition technology and have functioned in that centralized role (along with the Registry of Motor Vehicles and the FBI) under provisions in the Police Reform Law for the past year while the commission sorted through a long-term policy. And so far, so good.
The commission also recommended:
▪ Absent specific authorization, prohibiting law enforcement “officers and agencies” — other than the State Police — from acquiring or using facial recognition systems. At least 20 other departments, including the Suffolk County District Attorney’s office, use the technology now, according to a survey conducted by the commission.
▪ Requiring a warrant issued by a judge and based on probable cause that “an unidentified or unconfirmed individual in an image has committed a felony” before permitting a facial recognition search.
▪ Allowing a search without a warrant in the event of an emergency or immediate “danger of death or serious physical injury to any individual or group of people.”
▪ Allowing facial recognition searches without a warrant to identify a deceased person — a common use of the technology now.
▪ Requiring timely disclosure by the attorney general or district attorney to a defendant that they were identified using facial recognition technology — a provision designed to allow a timely challenge to any misidentification.
None of this will come to pass, however, unless the resulting piece of legislation gets some fairly prompt attention during the four months that remain before the Legislature ceases its formal sessions for the year.
In addition to providing those much-needed guardrails, such a law would head off unneeded local expenditures for the latest shiny law enforcement tool. In fact, 11 local police departments told the commission they had used or tested the technology but no longer do so.
And 80 percent of the 163 law enforcement entities responding to the commission survey said they hadn’t sampled the technology and had no intention of doing so.
Centralizing use of the technology would also assure that, as the software improves, upgrades can be made more quickly. That is intended to address the issue that, as the commission noted, the accuracy of facial recognition software “can vary greatly,” especially in “its precision across different genders, races, and ethnicities.”
As of the end of last year, nine other states had passed laws that limit or regulate the use of facial recognition, including neighboring Maine and New Hampshire. The New Hampshire law relates only to its use in connection with police body-worn cameras. Vermont and Virginia enacted broad moratoriums on law enforcement use of facial recognition until their legislatures authorize its use.
In the end, facial recognition is neither a monster nor a law enforcement savior. In the right hands and with the right guidelines it can be a useful tool — nothing more, nothing less. But to ignore the reality of its existence — and not put appropriate and well-measured guidelines in place for its use — would be a foolish mistake.
Editorials represent the views of the Boston Globe Editorial Board. Follow us @GlobeOpinion.