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Virginia lawmakers restrict use of facial recognition software

In February 2021, with a total lack of fanfare, Virginia's lawmakers made stringent restrictions on facial recognition technology and how it can be used. 

The new law sees Virginia join a slew of other states – including New York, Vermont and California – to have formally legislated on the issue. 


Surveillance in Virginia 

Facial recognition technology developed by Clearview AI has been used without lawmaker's knowledge in various police investigations in Virginia over the last few years. 

This included several reported uses by the police department in the city of Norfolk that led to successful arrests. The Virginia Beach Police Department confirmed earlier this month that ten of its detectives had also used the software in their investigations. 

Clearview checks suspects against its image database compiled through the extraction of publically available sources like social media accounts. In February 2020, the company was hit with a class-action lawsuit in the state of Virginia regarding its database, followed by a further one in Illinois in the summer of the same year.

What law was passed?

Effective from July 1, 2021, House Bill 2031 dictates that no police officer operating inside Virginia state lines is legally allowed to use Clearview or any other facial recognition software to aid them with their investigations without authorization from Virginia's congress. 

The bill defines 'facial recognition technology' as an "electronic system for enrolling, capturing, extracting, comparing, and matching an individual's geometric facial data to identify individuals in photos, videos, or real-time".

The law applies to all entities using technology that falls under this category, from the police to higher education authorities. 

What did lawmakers say?

The law received widespread bipartisan support in Virginia's state congress, a rare example of cooperation in a domestic political climate that feels increasingly divided, especially in southern states. 

In fact, not one member of either the republican and democrat party voted against the bill, which strongly suggests that there was little pushback from constituents and that the implementation will be greeted with optimism. 

Lashrecse Aird, the Democratic lawmaker who sponsored the recently passed bill, spoke of the issue shortly after the vote:

Citizens should have control of and awareness of whether or not their law enforcement officers are using this type of technology. The immediate baseline-level concern is that these databases have misidentified people on a large scale, particularly anyone with significant pigmentation, so black and brown people.

Del. Lachrecse Aird, 63rd District of Virginia

She was joined by Republican lawmakers who even proposed making the law more restrictive than originally suggested. 

"This is biometric data that is unique to each person, so we need to put in protections, just like we would for other things that are being used in the criminal justice arena" argued GOP state Senator Ryan McDougle. 

What did the police say?

According to the Police Department in Norfolk, Virginia, they invoked Clearview's technology in 20 investigations in a three-month period in 2019. It led to nine arrests in total. 

Reports suggest that initially, police pushback was minimal to non-existent. However, with a month now elapsed since the bill was passed, some law enforcement officials aren't entirely happy with the new arrangement. 

"I think a lot of people want to know what impact that is going to have on public safety and a lot of other industries if you do away with it. It is a way to catch bad guys — you can catch really bad actors — and that’s always a good thing,"
argued John Jones, executive director of the Virginia Sheriffs' Association.

A step in the right direction?

Last year, the New York Times published the results of their investigation into how law enforcement agencies were using Clearview AI between January 2019 and 2020. Left largely unchecked by their respective state legislatures, over 600 agencies that play a role in enforcing the law had started harnessing the resources provided by the technology company.

It's encouraging to see that the state lawmakers in Virginia are tackling this issue head-on.

For privacy advocates, the unanimous support the bill received is a further indication that concerns about the creeping power of big technology companies and how they use our data is one that cuts across party lines. Going forward, the hope is that these broad agreements are not unique to Virginia. 

Written by: Aaron Drapkin

After graduating with a philosophy degree from the University of Bristol in 2018, Aaron became a researcher at news digest magazine The Week following a year as editor of satirical website The Whip. Freelancing alongside these roles, his work has appeared in publications such as Vice, Metro, Tablet and New Internationalist, as well as The Week's online edition.


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