Virginia lawmakers agree to lift ban on using facial technology

RICHMOND, Va. – Last year, Virginia lawmakers passed one of the nation’s most restrictive bans on the use of facial recognition technology, barring local police departments and campus police from purchase or use technology unless explicitly authorized by the legislature.

On Thursday, just eight months after the measure took effect, lawmakers approved a bill to lift the blanket ban. The legislation would allow police services to use technology in certain circumstances, including to help identify a person when they have reasonable grounds to suspect the person has committed a crime. Under the bill, facial recognition could also be used for a variety of other purposes, including to help identify victims or witnesses of crime, victims of sex trafficking and unidentified bodies in morgues.

The legislation explicitly prohibits the use of facial recognition for surveillance or control purposes. Cities and states across the country moved to limit its use after some law enforcement agencies applied facial recognition technology to footage taken by street cameras during racial justice protests in 2021 and the used to make arrests in some cases.

Several lawmakers said they viewed the ban passed last year as a temporary measure for lawmakers to assess facial recognition technology. Democratic Sen. Scott Surovell, whose bill was approved on Thursday, said the technology — when used with the proper restrictions — can be an important investigative tool for police.

“I think this will help police not only solve, but also prosecute crimes more effectively,” Surovell said.

Some lawmakers have vehemently opposed ending the ban, citing concerns about privacy, civil rights violations and studies that have found higher error rates for facial recognition software used to identify people of color.

“This technology can be very important for law enforcement in different types of investigative situations, but it can also be used for an enormous amount of bad stuff…it’s dangerous,” Republican Senator Ryan McDougle said. .

“It’s not fair, it’s not as restrictive as it should be,” he said.

Democratic Del. Marcia “Cia” Price cited the case of Robert Williams, a black man who was arrested by Detroit police when facial recognition technology mistakenly identified him as a shoplifting suspect. Williams said her Michigan driver’s license photo — held in a statewide image repository — was incorrectly flagged as a likely match to the suspect. Investigators had scanned grainy CCTV footage of a 2018 robbery at a watch store.

“When he said he didn’t, the officer said, ‘Well, the computer said you did,'” Price said.

“Why should we allow law enforcement to use it?” she says.

The ban applied to local and campus police departments, but not to the Virginia State Police. State police use the Centralized Criminal Image System, which allows them to match an unknown image of a person against a database of mugshots of arrestees. The software returns images that bear a similarity to the subject in question, but police investigators are required to confirm official identification.

Several lawmakers said the new legislation includes “safeguards” to ensure police must follow clear rules about when and how technology can be used. Republican Del. Glenn Davis said police already routinely use publicly available photos on social media sites during investigations.

“All we’re doing here is instead of having law enforcement officers sitting there looking at hundreds of photos trying to match this match, we’re using this technology,” said Davis.

Surovell said the law prohibits police from including any information obtained through facial recognition when applying for a search warrant or arrest warrant. Police can use technology to develop leads, but they must have corroborating evidence before they can apply for a warrant, he said.

The bill also requires facial technology to be used by police to be evaluated by the National Institute of Standards and Technology and have an accuracy rating of at least 98% across all demographic groups. The legislation directs the Virginia State Police to develop a model policy on investigative uses of facial recognition technology. Local local police departments must adopt state policing standards or come up with their own policies that meet or exceed those standards.

Youngkin has not indicated whether he will sign the bill. His spokesman, Macaulay Porter, declined to comment, saying only that Youngkin will review the legislation when she arrives at his office.

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