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The reality of facial recognition in Montana

by Tanner Avery
| November 28, 2021 12:00 AM

“It would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of technology. The question we confront today is what limits there are upon this power of technology to shrink the realm of guaranteed privacy.” – Former Supreme Court Justice Antonin Scalia

We’ve been following developments as the Economic Affairs Interim Committee continues to study the use of Facial Recognition in Montana. This week we submitted a formal comment to the committee, identifying concerns we have about the current system regulating the use of facial recognition.

Facial recognition has been touted as a technology that has the ability to make government more efficient by helping to prevent fraud for things like unemployment. There is little doubt that the technology has a lot of potential, but there is still huge potential for abuse.

Under the Montana Investigations Bureau, the Montana Analysis and Technical Information Center (MATIC), the state’s data fusion center does not have their own facial recognition databases, though they are authorized to use external facial recognition databases. However, internal policy dictates searches to be conducted only for specific cases that meet the requirements of “reasonable suspicion” of a crime.

While the internal policies of MATIC regarding the use of facial recognition are a welcome development, some law enforcement agencies may not have the same restrictions. Clearview AI, the facial recognition company that scanned social media sites like Facebook to create their database, offers their services to law enforcement agencies wishing to use facial recognition. Local law enforcement agencies across Montana may not have the same rules regarding when it is okay to conduct a facial recognition search. Without uniform rules on the use of facial recognition, agencies have the potential to abuse the use of facial recognition technology.

Another major concern is the lack of standards around how Montana agencies use and share data with third party facial recognition systems. The Montana Department of Motor Vehicles does not “allow any external access to their FRT system,” although Montana’s driver license database is shared with national databases. This creates the potential for Montana drivers license photos to be used in facial recognition databases outside the state.

While agencies like the Montana DMV have their own facial recognition databases, groups like Montana’s unemployment insurance program do not have their own database, necessitating that they rely on third party vendors. Vendors like ID.ME have policies that could allow law enforcement “access to searches of the UI database via requests to the vendor” despite policies from Montana UI prohibiting such actions.

Without uniform and transparent rules regarding when FRT can be used, to whom data can be shared with, and when agencies can use third-party systems, the technology will continue to pose a threat to the security and privacy of Montanans. While facial recognition may provide a powerful tool, appropriate restrictions need to be implemented to protect Montanans.

Tanner Avery is communications and outreach director at the Montana-based Frontier Institute. The Frontier Institute believes in solving problems with more freedom not more government.