A Guide to enacted and proposed legislation

This resource was prepared by Policing Project staff and Pam Hrick of the Information Law Institute at NYU School of Law.

As face recognition technology (FRT) advances and spreads across the country, many have raised a variety of concerns about its deployment – from inaccuracy and potential racial disparities, to secretive and abusive use by law enforcement. Some have argued that particularly in the hands of the state, FRT raises the specter of surveillance of political activities, protests, and engagement in other protected forms of expression and association.

Although at present FRT remains largely unregulated, an increasing number of government actors at the local, state, and federal levels have begun taking steps towards directly or indirectly constraining the use of FRT. Our review has found a wide variety of enacted and proposed legislation across the U.S. and Canada that, broadly speaking, proceeds on three (at times overlapping) dimensions:

1. General regulations that ban, pause, or study FRT;

2. Operations-based regulations that control how FRT is deployed; or

3. Data-based regulations that restrict the images used to operate FRT.

As public calls for regulation of FRT increase, we thought communities and governments might benefit from a broader understanding of the measures being adopted or proposed. Although not meant to be exhaustive, we describe many of the major categories of restrictions below (often with links to legislative measures and the names of legislators spearheading the efforts). Although described separately, many laws contain provisions from multiple categories. Our goal is not to suggest that proper regulation should draw on only one category or another; rather, any jurisdiction considering regulating FRT may well want to consider a combination of these requirements that strikes the appropriate balance.

The regulation of FRT use is one of the most pressing technological issues facing state actors today. Existing and proposed measures demonstrate the wide range of available approaches to regulation, including absolute bans, carefully-crafted restrictions, and ongoing democratic accountability measures. In this article, we have aimed to provide a foundational understanding of these approaches. Our hope is that with this information in hand, legislators and the broader public will be empowered to pursue regulatory options that are responsive to the needs of their communities and that sufficiently account for the potentially significant privacy and civil rights implications of FRT use.