Federal civil rights watchdog sounds alarm over DOJ, DHS and HUD use of facial recognition technology

The U.S. Commission on Civil Rights (UCCR) on Thursday released a report which asserts that three federal agencies’ use of facial recognition technology (FRT) is deeply concerning, not sufficiently standardized and not transparent enough.

The commission studied how the Department of Justice (DOJ), the Department of Homeland Security (DHS) and the Department of Housing and Urban Development (HUD) use the technology, sometimes leading to wrongful arrests, bias in accessing housing and more troubling outcomes.

While DOJ and DHS have recently implemented interim policies for its use of the technology, HUD does not have one, the report said. The agencies’ funding recipients also deploy the technology, the report noted.

“These [facial recognition] identifications lead to potential violations of civil rights, including wrongful arrests and denials of essential services,” UCCR Chair Rochelle Garza said at a meeting unveiling the findings. 

“Just as alarmingly, we found a concerning lack of federal oversight, with no standardized regulations to guide the use of FRT which leaves citizens vulnerable to abuses of power and privacy concerns,” Garza added.

Women and people of color are disproportionately misidentified with FRT, Garza said.

While DOJ’s interim policy states the tools can only be used to generate investigative leads, the report noted that there is “insufficient data to confirm adherence to this rule in practice.”

There is also no current “express legal requirement” for the agency to tell defense lawyers when FRT has played a role in investigating defendants.

Because there are no public databases which show how often FRT searches are used on individuals, the types of crimes FRT is applied to and how accurate results are, the report said that “conducting public oversight of the government’s use of FRT to determine if civil rights violations are occurring is extraordinarily difficult.”

Customs and Border Patrol, an agency housed within DHS, uses the technology in 53 airports, 40 seaports and all pedestrian lanes at the Mexican border, the report said. The agency deploys FRT to investigate cross-border crimes.

HUD uses FRT in surveillance cameras in public housing without tracking how often federal funds are used to acquire the technology. As a result, the report said it is impossible to know how many evictions from public housing FRT played a role in. HUD also does not know how many or which public housing authorities it oversees use FRT and does not have any policies in place to govern how it is implemented, the report said.

Congresswoman Yvette Clarke (D-NY), who has been a legislative trailblazer on the issue, said that FRT has been used in public housing in her district in lieu of physical keys.

“Someone living in public housing should not and cannot be the guinea pig for the emerging technology of biometrics,” Clarke said at the UCCR meeting. 

“As we enter this new age of AI, too many untested technologies are being given carte blanche to run the systems and services that Americans rely on,” she added.

Only one of the studied federal agencies using FRT — Homeland Security Investigations — requires its employees to be trained in how to use the technology before deploying it, the report said.

The report contains several recommendations, including that Congress direct the National Institute of Standards and Technology (NIST) to evaluate FRT technologies used by law enforcement, report error rates for individual demographic groups and develop testing methods and requirements.

Recommendations for the agencies include that they:

• Report whether they use FRT and whether they require training for its use on their websites 

• Make their complete FRT policies public

• When appropriate, offer opt-outs

• Ensure FRT is only one factor in arrests and investigations

• Disclose to defense lawyers upon arrest and in charging documents that FRT was deployed and implement policies for how to alert defendants and judges about the details of its use

• Require that the agencies’ ensure their FRT meets minimum NIST accuracy requirements

• That DOJ regularly audit whether their employees are following department policies when using FRT in searches

• That DHS update federal grant applications to include the report’s recommendations and publish the information