In 2017, the Metro Nashville Council overwhelmingly passed an ordinance 25-2 taking steps to limit the use of surveillance technology by the city government. The resulting law, Section 13.08.080, requires council approval when placing surveillance devices onto public rights-of-way, with “surveillance” covering technology from biometric software to RFID scanners.
In short, the law does not prevent the use of technologies like facial recognition. Although billed as a “safeguard” for civil rights and liberties, the law itself falls short of protecting these for Nashville citizens. In fact, the section does not apply to the Nashville Electric Service, the Metropolitan Nashville Airport Authority, the Metropolitan Development and Housing Agency, and the Metropolitan Transit Authority. Even more importantly, the section does not apply to surveillance conducted by law enforcement, which is often the area where this technology harms citizens the most.
It was only five years ago that the City of Baltimore Police Department used facial recognition technology to identify protesters following the death of Freddie Gray — development of technology has made the existing Metro law obsolete. Now, police departments across the country contract with companies like Clearview AI, who have scraped billions of facial images from the internet and turned it into a searchable database.
A person does not surrender all Fourth Amendment protection by venturing in the public sphere. – Chief Justice of the United States Supreme Court John Roberts, Carpenter v. United States (2018)
The biggest issue with facial recognition is that it is often inaccurate and biased. For example, The University of Essex independently assessed the London police force’s use of facial recognition technology, concluding it was inaccurate 81% of the time. A study from the National Institute of Standards and Technology (NIST) showed that one algorithm mixed up black women’s faces about 10 times more often than those of white women. And MIT researchers also showed dramatically different error rates between white and black individuals from commercially available software, with the largest errors resulting from darker faces.
Because of these issues, some cities in Massachusetts and California have taken major steps to combat this technology – with Southern cities like New Orleans, Louisiana and Jackson, Mississippi banning facial recognition technology this year. The aforementioned Clearview AI now faces multiple class action lawsuits that allege privacy violations in three states – California, Illinois, and New York. Further, technology firms like IBM and Amazon have suspended or stopped development of facial recognition software in the hopes that the federal government places restrictions on this technology.
In December, Nashville’s Metro Council amended Section 13.08.080 to restrict the city government from acquiring surveillance information captured by personal or business technology, without the direct consent of that person or business. While this may limit some encroachment on the civil liberties of Nashville citizens, it still does not address the main issues with the existing law.
Since Nashville passed this ordinance on surveillance technology in 2017, the field has already made major advances. As computers and algorithms become more powerful, it becomes far easier to collect and recognize facial images. And as the technology advances, there are looming ethical questions surrounding the biases baked-in to this software.
This all rests on the shoulders of a year defined by a pandemic — a local bar in Nashville even used this type of technology to check the temperatures of its patrons. The company making these cameras, Eagle X Pro, says it does not maintain the data — yet in the near future, this type of information could be aggregated and used to track detailed personal information like where customers shop or what houses of worship they attend.
This points to both privacy and civil liberty concerns associated with tracking health and location information, while potentially providing it to a government entity like the Nashville government. As companies like Eagle X Pro and Clearview AI demonstrate, there is a business opportunity in collecting and using this type of data, whether the method is biased or not.
In contrast to firms like Clearview – Amazon, IBM, and Microsoft all enforced their own restrictions on facial recognition technology in the hopes of encouraging the federal government to take action. However, it is clear that this market force cannot stop Clearview and other firms from selling to law enforcement agencies across the country.
Although these steps have been taken to encourage the federal government to act, there is little evidence to suggest that they will do so quickly. With how fast this technology is advancing, it is necessary for the Nashville to ban all use of facial recognition by its government to ensure that the inaccuracies baked-in do not placate our community.