Merkley, Wyden Introduce Legislation to Ban Government Use of Facial Recognition, Other Biometric Technology

Washington D.C. – Oregon’s U.S. Senator Jeff Merkley led a group of eight lawmakers—including U.S. Senator Ron Wyden (D-OR)—this week in introducing bicameral legislation to end government use of biometric technology such as facial recognition tools.


The Facial Recognition and Biometric Technology Moratorium Act responds to reports that hundreds of local, state, and federal entities, including law enforcement agencies, have used unregulated facial recognition technologies and research showing that roughly half of U.S. adults are already in facial recognition databases. 

“It’s disturbing that our government and law enforcement are continuing to use facial recognition technology, despite the fact that its use has resulted in reports of discriminatory outcomes that has ripped innocent people away from their lives and locked them up in jail,” said Merkley. “This trend should concern every American who stands against discrimination, values their right to privacy, and believes people are innocent until proven guilty. That’s why we’re pushing to put in place a federal moratorium on this technology until it’s ready for primetime—meaning critical safeguards are established to ensure that the technology does not further perpetuate systemic racism, and that Americans will be protected from inappropriate surveillance.”  

“Facial recognition technology has been plagued with far too many problems for any government to use it responsibly,” Wyden said. “This technology has been misused against peaceful protestors, sent innocent people to jail and has proven to misidentify Black Americans and people with dark skin at elevated rates. I am proud to join Senators Markey and Merkley in introducing legislation to put facial recognition tech on ice until there is proof it can be used effectively and safely.”

As this technology continues to proliferate, experts have found that facial recognition tools are significantly less accurate when analyzing biometric data from vulnerable and marginalized populations. For example, an analysis of facial recognition tools by the National Institute of Standards and Technology found that Black, Brown, and Asian individuals were up to 100 times more likely to be misidentified than white male faces. Three Black men have already been wrongfully arrested based on a false facial recognition match, and earlier this month, more than 40 leading civil rights and privacy groups called for a moratorium on law enforcement entities’ use of this technology.

A copy of the legislation be found HERE.

The Facial Recognition and Biometric Technology Moratorium Act would:

·         Place a prohibition on the use of facial recognition technology by federal entities, which can only be lifted with an act of Congress;

·         Place a prohibition on the use of other biometric technologies, including voice recognition, gate recognition, and recognition of other immutable physical characteristics, by federal entities, which can only be lifted with an act of Congress;

·         Condition federal grant funding to state and local entities, including law enforcement, on those entities enacting their own moratoria on the use of facial recognition and biometric technology;

·         Prohibit the use of federal dollars for biometric surveillance systems;

·         Prohibit the use of information collected via biometric technology in violation of the Act in any judicial proceedings;

·         Provide a private right of action for individuals whose biometric data is used in violation of the Act and allow for enforcement by state Attorneys General; and

·         Allow states and localities to enact their own laws regarding the use of facial recognition and biometric technologies.

“The perils of face recognition technology are not hypothetical — study after study and real life have already shown us its dangers. The technology’s alarming rate of inaccuracy when used against people of color has led to the wrongful arrests of multiple Black men including Robert Williams, an ACLU client. Giving law enforcement ever more powerful surveillance technology empowers constant surveillance, harms racial equity and is not the answer,” Kate Ruane, senior legislative counsel at the American Civil Liberties Union, said. “It’s past time to take action, and the Facial Recognition and Biometric Moratorium Act of 2021 is an important step to halt government use of face recognition technology.”

“Facial recognition exponentially amplifies the brutality and injustice of policing in the United States. This is a technology that is fundamentally incompatible with basic liberty and human rights. It’s more like nuclear weapons than alcohol or cigarettes –– it can’t be effectively regulated, it must be banned entirely. Silicon Valley lobbyists are already pushing for weak regulations in the hopes that they can continue selling this dangerous and racist technology to law enforcement. But experts and advocates won’t be fooled,” said Evan Greer (she/her), Director of Fight for the Future. “Any lawmaker who fails to support this moratorium legislation, to at least put a pause on the spread of this technology while we have a conversation about its impact on our society, is actively supporting the erosion of our basic human and constitutional rights.” 

“Facial-recognition technology has spread more rapidly than our ability to keep its abuses in check. Study after study have exposed the systemic racism that’s baked into the DNA of its algorithms. Its continued use poses a serious threat to communities of color and activists, allowing law enforcement to monitor individuals without their knowledge or consent; even if the tech worked properly it would disproportionately impact Black and Brown people, who are already over-policed. Several cities have already banned the use of this invasive and discriminatory technology by local authorities. We’re incredibly grateful to Senators Markey and Merkley and Representatives Jayapal and Pressley for raising concerns at the federal level,” said Sandra Fulton, Government Relations Director for Free Press Action.

“Law enforcement’s use of biometric surveillance exacerbates racial biases in our justice system and inflicts harm on Black people,” said Arisha Hatch, Vice President of Color Of Change. “For too long, mass surveillance and the infringement of civil rights have been used to destabilize and exploit Black communities. Biometric technologies are built on these racist law enforcement practices, invasions of privacy, and algorithms that only provide people with the tools to escalate state violence against Black people. Facial recognition surveillance cannot be reformed — the technologies that amplify racism must be banned. Color Of Change commends Senator Markey and Representative Jayapal for taking swift action in prohibiting facial recognition technology and will continue to support legislation that ensures racist mass surveillance practices are ended.”

“Face surveillance technology is so harmful to our safety and privacy, and so discriminatory, that government must not use it at all,” said India McKinney, Director of Federal Affairs at the Electronic Frontier Foundation. “We thank the authors of this bill for their leadership in ending the federal government’s use of this dangerous and invasive technology.”

“Facial recognition poses a significant threat to our democracy and privacy. Facial recognition technology has been shown time and time again to be biased, inaccurate, and disproportionately harmful to people of color. The Facial Recognition and Biometric Technology Moratorium Act of 2021 would effectively ban law enforcement use of this dangerous technology. EPIC is proud to support it,” said Caitriona Fitzgerald, Deputy Director, Electronic Privacy Information Center (EPIC).

Endorsers of the Facial Recognition and Biometric Technology Moratorium Act include: American Civil Liberties Union (ACLU), Electronic Frontier Foundation, Fight for the Future, Color of Change, MediaJustice, Electronic Privacy Information Center (EPIC), Free Press, Jewish Voice for Peace, MPower Change, the Athena Coalition, Project on Government Oversight, Georgetown University Law Center’s Center on Privacy & Technology, and New America’s Open Technology Institute, Campaign for Commercial Free Childhood, Surveillance Technology Oversight Project, Amnesty International USA, Restore The Fourth, National Association of Criminal Defense Lawyers, LGBT Technology Partnership and Institute, Public Citizen, Center for Digital Democracy, Council on American-Islamic Relations, CenterLink: The Community of LGBT Centers, Defending Rights & Dissent, Montgomery County Civil Rights Coalition, Detroit Community Technology Project, Black Alliance for Just Immigration, Muslim Justice League, Joy Buolamwini (Algorithmic Bias Researcher at Massachusetts Institute of Technology and Founder of The Algorithmic Justice League), Upturn, and Asian Americans Advancing Justice – AAJC.

In addition to Merkley and Wyden, this legislation is cosponsored by Senators Bernie Sanders (I-VT), Edward J. Markey (D-MA), and Elizabeth Warren (D-MA), along with Representatives Pramila Jayapal (D-WA-07), Ayanna Pressley (D-MA-07) and Rashida Tlaib (D-MI-13).