Faces have unique qualities that allow individuals to be recognized through computer algorithms that have developed to the point where software is being used by law enforcement to help identify perpetrators of crime.  As its use becomes widespread, the technology is raising concerns about privacy and security. 

Sens. Chris Coons (D-Del.) and Mike Lee (R-Utah) are attempting to address these issues in their legislation, S. 2878, the Facial Recognition Technology Warrant Act of 2019, which was introduced on November 14, 2019.  This bipartisan legislation would impose limits on use of facial recognition technology by federal law enforcement agencies and require a warrant before this technology could be used for surveillance activities. 

Since 2013, Citizens Against Government Waste has supported modernizing laws that would require a warrant to access email content and data stored in the cloud, including the Electronic Communications Privacy Act (ECPA) of 1986.  However, efforts to update ECPA have stalled with the current Congress.  The legislation introduced by Sens. Coons and Lee does not address access to email content and data accumulated and retained using new technologies beyond facial recognition algorithms and technology. 

At a December 5, 2019 Brookings event launching S. 2878, Sens. Lee and Coons both agreed that their bill is the start of the conversation on regulating law enforcement use of facial recognition technology.  In the coming months, Congress should continue to look at the interaction of law enforcement with all these new technologies and provide clear direction on the parameters for accessing and using facial recognition information while protecting privacy and security.