New York City Council today passed a privacy law for commercial establishments that prohibits retailers and other businesses from using facial recognition or other biometric tracking without public notice. If signed into law by NYC Mayor Bill de Blasio, the bill would also prohibit businesses from being able to see biometric data for third parties.
In the wake of the Black Lives Matter movement, an increasing number of cities and states have expressed concerns about facial recognition technology and its applications. Oakland and San Francisco, California and Somerville, Massachusetts are among the metros where law enforcement is prohibited from using facial recognition. In Illinois, companies must get consent before collecting biometric information of any kind, including face images. New York recently passed a moratorium on the use of biometric identification in schools until 2022, and lawmakers in Massachusetts have advanced a suspension of government use of any biometric surveillance system within the commonwealth. More recently, Portland, Maine approved a ballot initiative banning the use of facial recognition by police and city agencies.
The New York City Council bill, which was sponsored by Bronx Councilman Ritchie Torre, doesn’t outright ban the use of facial recognition technologies by businesses. However, it does impose restrictions on the ways brick-and-mortar locations like retailers, which might use facial recognition to prevent theft or personalize certain services, can deploy it. Businesses that fail to post a warning about collecting biometric data must pay $500. Businesses found selling data will face fines of $5,000.
In this aspect, the bill falls short of Portland, Oregon’s recently-passed ordinance regarding biometric data collection, which bans all private use of biometric data in places of “public accommodation,” including stores, banks, restaurants, public transit stations, homeless shelters, doctors’ offices, rental properties, retirement homes, and a variety of other types of businesses (excepting workplaces). It’s scheduled to take effect starting January 1, 2021.
“I commend the City Council for protecting New Yorkers from facial recognition and other biometric tracking. No one should have to risk being profiled by a racist algorithm just for buying milk at the neighborhood store,” Fox Cahn, executive director of the Surveillance Technology Oversight Project, said. “While this is just a first step towards comprehensively banning biometric surveillance, it’s a crucial one. We shouldn’t allow giant companies to sell our biometric data simply because we want to buy necessities. Far too many companies use biometric surveillance systems to profile customers of color, even though they are biased. If companies don’t comply with the new law, we have a simple message: ‘we’ll see you in court.’”
Numerous studies and VentureBeat’s own analyses of public benchmark data have shown facial recognition algorithms are susceptible to bias. One issue is that the data sets used to train the algorithms skew white and male. IBM found that 81% of people in the three face-image collections most widely cited in academic studies have lighter-colored skin. Academics have found that photographic technology and techniques can also favor lighter skin, including everything from sepia-tinged film to low-contrast digital cameras.
“Given the current lack of regulation and oversight of biometric identifier information, we must do all we can as a city to protect New Yorkers’ privacy and information,” said Councilman Andrew Cohen, who chairs the Committee on Consumer Affairs. Crain’s New York reports that the committee voted unanimously in favor of advancing Torres’ bill to the full council hearing earlier this afternoon.
The algorithms are often misused in the field, as well, which tends to amplify their underlying biases. A report from Georgetown Law’s Center on Privacy and Technology details how police feed facial recognition software flawed data, including composite sketches and pictures of celebrities who share physical features with suspects. The New York Police Department and others reportedly edit photos with blur effects and 3D modelers to make them more conducive to algorithmic face searches. And police in Minnesota have been using biometric technology from vendors including Cognitec since 2018, despite a denial issued that year, according to the Star Tribune.
Amazon, IBM, and Microsoft have self-imposed moratoriums on the sale of facial recognition systems. But some vendors, like Rank One Computing and Los Angeles-based TrueFace, are aiming to fill the gap with customers, including the City of Detroit and the U.S. Air Force.