Should the state be prohibited from using facial recognition technology without a search warrant?

It sounds like the plot of some futuristic sci-fi thriller: the government keeps a database of images of citizens’ faces, and that database can be used for surveillance of individuals. For better or worse, this is no longer science fiction. The same technology that allows you to open your phone simply by looking at it can be used by governments to track people as they go about their lives in public. There’s a New Hampshire bill up for debate this year—HB 499— to set limits on how this kind of technology can be used in the Granite State.  

What’s in the bill?  

In some ways, you might say HB 499 actually represents two different proposals. There’s the bill as it was introduced, and then there’s a new version rewritten by the House Executive Departments and Administration committee. The full House of Representatives will have the power to pass either version when they meet in April, so we’ll explain both versions here in this article.  

HB 499 as it was introduced says that “No officer or employee of a state agency shall use facial recognition technology to engage in ongoing surveillance of an individual or group of individuals in a public space, unless…” Yes, there’s an “unless.” If this original version of the bill is passed, there would be certain circumstances where the state could engage in ongoing surveillance using facial recognition.

Law enforcement would be allowed to use facial recognition to run individual photos or surveil an area for less than three days.  If they wanted to use facial recognition technology to surveil a public space for more than three days, they would have to get a court order. 

The law would  make any information derived from the illegal use of facial recognition technology  inadmissible in court.

Lastly, the DMV would not be permitted to allow access to its photo database for use by facial recognition technology, and no other department would be allowed to create or maintain a searchable database of face images.  

The bill as it was rewritten

The House Executive Departments and Administration committee is recommending the full House pass the new, amended version of the bill, but the House is not bound by the committee’s recommendation.

The new version of HB 499 says that law enforcement could only use facial recognition if they got a search warrant supported by probable cause. In other words, the rewrite of HB 499 is a lot stricter than the original bill, and it means police would always need sufficient evidence to justify the use of facial recognition.

Balancing privacy and public safety

Proponents of the amended version of the bill say the proposal will protect citizens’ privacy while still allowing officers to use this technology when there is other evidence to support it.

However, some law enforcement officers oppose the amended bill because they argue it will tie their hands. The original version of HB 499 would put some guardrails on the use of facial recognition in public spaces, but it would give law enforcement more leeway to take advantage of the tools at their disposal.

Along with tracking suspects, facial recognition can be used to help find unidentified victims or missing persons.  During the bill hearings for HB 499, legislators and witnesses debated how facial recognition technology might be used to find a missing senior, a potential victim of child sexual abuse, and even rioters at the Capitol on January 6.  Ultimately each case has unique details, and there’s no way to know for sure if a judge would agree there was probable cause for a search warrant to use facial recognition technology. 

Could the technology be abused?

 Others simply feel this kind of technology shouldn’t be used by law enforcement at all. After all, when it comes to personal information, it doesn’t get much more personal than your face. The technology is also far from perfect. Often, this software is better at identifying white men than women and people of color. This could lead to people being wrongly accused of crimes.

The Governor’s Commission on Law Enforcement Accountability, Community and Transparency did not address facial recognition technology in their final recommendations.  

How to get involved

The House Executive Departments and Administration committee recently voted 17-1 that HB 499 ought to pass as amended. The full House of Representatives will vote on that recommendation when they next meet in April. This means the best way to make your voice heard on this issue is to contact your representative and tell them how you think they should vote on this bill. You can find out who represents you here.

Update 5/28/21: The Senate killed HB 499 in May. Click here to explore the latest legislative proposals related to consumer protection and privacy.