Merkley, Sanders Introduce Legislation to Put Strict Limits on Corporate Use of Facial Recognition

WASHINGTON, D.C. – Oregon’s U.S. Senator Jeff Merkley today continued his leadership at the intersection of privacy rights, racial justice, and emerging technologies by introducing the National Biometric Information Privacy Act of 2020, groundbreaking legislation that would prohibit private companies from collecting biometric data—including eye scans, voiceprints, faceprints, and fingerprints—without consumers and employees’ consent, or profiting off this data. He was joined in introducing the legislation by Senator Bernie Sanders (I-VT).

The introduction comes amid growing concerns over the prevalence of biometric data collection among private companies, including the use of facial recognition technology, and especially the implications of that use on the safety of communities of color. A landmark study released in December 2019 reported that Asian and Black individuals were up to 100 times more likely to be misidentified by facial recognition technology, signaling alarming consequences for the use of the technology to surveil stores.

“We can’t let companies scoop up or profit from people’s faces and fingerprints without their consent,” said Merkley. “We have to fight against a ‘big brother’ surveillance state that eradicates our privacy and our control of our own information, be it a threat from the government or from private companies.”

“Do we really want to live under constant surveillance by unaccountable corporations? I don’t. We cannot allow Orwellian facial recognition technology to continue to violate the privacy and civil liberties of the American people,” said Sanders.

The legislation limits the ability of companies to collect, buy, sell, lease, trade, or retain individuals’ biometric information without specific written consent, and requires private companies to disclose to any inquiring individual the information the company has collected for that individual. The bill would allow individuals and State Attorneys General to bring lawsuits against companies that fail to comply.

The bill is supported by Fight for the Future, The American Civil Liberties Union, Electronic Frontier Foundation, and Open Technology Institute.

“There are so many terrifying, abusive, and discriminatory ways that private companies could use facial recognition, which is why we can’t let them use this technology in public places without peoples’ knowledge and affirmative consent. We’ve heard about how Clearview was quietly used by hundreds of companies without public knowledge, just vacuuming up our biometric data—who knows for what purpose. This is a clear infringement on our rights and it must be stopped,” said Caitlin Seeley George, Campaign Director at Fight for the Future.

“Biometric identifiers are uniquely sensitive pieces of information that can be used to track who we are and where we go.   Importantly, this bill ensures that companies cannot collect and use these identifiers without strong privacy safeguards. It pairs these safeguards with strong enforcement, allowing consumers to take companies who violate these standards to court,” said Neema Singh Guliani, Senior Legislative Counsel at The American Civil Liberties Union.

“The Electronic Frontier Foundation supports this bill, which will protect the biometric privacy of all Americans. Our rights are threatened by businesses that harvest and monetize our biometrics without our knowledge or consent. The bill requires businesses’ to get our opt-in consent before collecting or sharing our biometrics, to timely delete our biometrics, and to securely store our biometrics. Most importantly, the bill empowers us to sue businesses that break these rules. We look forward to helping enact this bill,” said India McKinney, Director of Federal Affairs at Electronic Frontier Foundation.

“Now more than ever, we need to establish clear limitations on when and how private companies collect and use biometric data. As facial recognition becomes more prevalent in commercial spaces, private companies devise and deploy pandemic response tools, and some companies even monetize our sensitive biometric data, safeguards are direly needed. Especially in the absence of a comprehensive data privacy law, the National Biometric Information Privacy Act of 2020 would provide crucial protections,” said Lauren Sarkesian, Senior Policy Counsel at New America’s Open Technology Institute.

Previously, Merkley pressed the CEO of CLEAR, a biometric identification company, for details regarding what privacy practices and precautions were being undertaken for a new product being marketed to businesses to screen their employees and consumers for the coronavirus. In addition, Merkley has also called upon major car manufacturers to tell Congress whether or not their cars collect personal data from drivers, after reports that cars can collect 25 GB of data per hour.

In June, he joined his colleagues in introducing the Facial Recognition and Biometric Technology Moratorium Act in response to reports that federal and local law enforcement entities have engaged with facial recognition companies, and following the amplification of a shocking story involving Robert Williams, a Black man from the Detroit area who was wrongfully arrested after facial recognition technology misidentified him as the man who was seen allegedly committing a crime on a store’s surveillance camera feed.

Earlier this year, Merkley teamed up with Senator Cory Booker (D-NJ) to introduce the Ethical Use of Facial Recognition Act, which would safeguard Americans’ right to privacy by instituting a moratorium on all federal governmental use of the technology until Congress passes legislation outlining specific uses for the data.

Full text of the National Biometric Information Privacy Act of 2020 is available here.