    [House Hearing, 117 Congress]
    [From the U.S. Government Publishing Office]

                         FACIAL RECOGNITION TECHNOLOGY:
                      EXAMINING ITS USE BY LAW ENFORCEMENT

    =======================================================================

                                    HEARING

                                   BEFORE THE

                       SUBCOMMITTEE ON CRIME, TERRORISM,
                             AND HOMELAND SECURITY

                                     OF THE

                           COMMITTEE ON THE JUDICIARY

                         U.S. HOUSE OF REPRESENTATIVES

                        ONE HUNDRED SEVENTEENTH CONGRESS

                                 FIRST SESSION

                                   __________

                             TUESDAY, JULY 13, 2021

                                   __________

                               Serial No. 117-33

                                   __________

             Printed for the use of the Committee on the Judiciary

    [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

                   Available via: http://judiciary.house.gov

                                    __________

                        U.S. GOVERNMENT PUBLISHING OFFICE
    48-329                     WASHINGTON : 2022

    -----------------------------------------------------------------------------------

                          COMMITTEE ON THE JUDICIARY

                        JERROLD NADLER, New York, Chair
                    MADELEINE DEAN, Pennsylvania, Vice-Chair

    ZOE LOFGREN, California              JIM JORDAN, Ohio, Ranking Member
    SHEILA JACKSON LEE, Texas            STEVE CHABOT, Ohio
    STEVE COHEN, Tennessee               LOUIE GOHMERT, Texas
    HENRY C. ``HANK'' JOHNSON, Jr.,      DARRELL ISSA, California
        Georgia                          KEN BUCK, Colorado
    THEODORE E. DEUTCH, Florida          MATT GAETZ, Florida
    KAREN BASS, California               MIKE JOHNSON, Louisiana
    HAKEEM S. JEFFRIES, New York         ANDY BIGGS, Arizona
    DAVID N. CICILLINE, Rhode Island     TOM McCLINTOCK, California
    ERIC SWALWELL, California            W. GREG STEUBE, Florida
    TED LIEU, California                 TOM TIFFANY, Wisconsin
    JAMIE RASKIN, Maryland               THOMAS MASSIE, Kentucky
    PRAMILA JAYAPAL, Washington          CHIP ROY, Texas
    VAL BUTLER DEMINGS, Florida          DAN BISHOP, North Carolina
    J. LUIS CORREA, California           MICHELLE FISCHBACH, Minnesota
    MARY GAY SCANLON, Pennsylvania       VICTORIA SPARTZ, Indiana
    SYLVIA R. GARCIA, Texas              SCOTT FITZGERALD, Wisconsin
    JOE NEGUSE, Colorado                 CLIFF BENTZ, Oregon
    LUCY McBATH, Georgia                 BURGESS OWENS, Utah
    GREG STANTON, Arizona
    VERONICA ESCOBAR, Texas
    MONDAIRE JONES, New York
    DEBORAH ROSS, North Carolina
    CORI BUSH, Missouri

            PERRY APELBAUM, Majority Staff Director & Chief Counsel
                  CHRISTOPHER HIXON, Minority Staff Director

                                  ------

            SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY

                        SHEILA JACKSON LEE, Texas, Chair
                        CORI BUSH, Missouri, Vice-Chair

    KAREN BASS, California               ANDY BIGGS, Arizona, Ranking
    VAL DEMINGS, Florida                     Member
    LUCY McBATH, Georgia                 STEVE CHABOT, Ohio
    MADELEINE DEAN, Pennsylvania         LOUIE GOHMERT, Texas
    MARY GAY SCANLON, Pennsylvania       W. GREGORY STEUBE, Florida
    DAVID CICILLINE, Rhode Island        TOM TIFFANY, Wisconsin
    TED LIEU, California                 THOMAS MASSIE, Kentucky
    LOU CORREA, California               VICTORIA SPARTZ, Indiana
    VERONICA ESCOBAR, Texas              SCOTT FITZGERALD, Wisconsin
    STEVE COHEN, Tennessee               BURGESS OWENS, Utah

                       JOE GRAUPENSPERGER, Chief Counsel
                        JASON CERVENAK, Minority Counsel

                             C O N T E N T S

                                  ----------

                             Tuesday, July 13, 2021

                                                                       Page

                               OPENING STATEMENTS

    The Honorable Sheila Jackson Lee, Chair of the Subcommittee on
      Crime, Terrorism, and Homeland Security from the State of Texas     1
    The Honorable Andy Biggs, Ranking Member of the Subcommittee on
      Crime, Terrorism, and Homeland Security from the State of
      Arizona........................................................     4
    The Honorable Jerrold Nadler, Chair of the Committee on the
      Judiciary from the State of New York...........................    24
    The Honorable Jim Jordan, Ranking Member of the Committee on the
      Judiciary from the State of Ohio...............................    25

                                   WITNESSES

    Gretta L. Goodwin, Director, Homeland Security and Justice, U.S.
      Government Accountability Office
      Oral Testimony.................................................    28
      Prepared Testimony.............................................    31
    Barry Friedman, Jacob D. Fuchsberg Professor of Law and Faculty
      Director, Policing Project, New York University School of Law
      Oral Testimony.................................................    49
      Prepared Testimony.............................................    51
    Robert Williams, Farmington Hills, Michigan
      Oral Testimony.................................................    64
      Prepared Testimony.............................................    66
    Bertram Lee Jr., Media and Tech Policy Counsel, The Leadership
      Conference on Civil and Human Rights
      Oral Testimony.................................................    71
      Prepared Testimony.............................................    73
    Kara Frederick, Research Fellow, Center for Technology Policy,
      The Heritage Foundation
      Oral Testimony.................................................    80
      Prepared Testimony.............................................    82
    Jennifer E. Laurin, The Wright C. Morrow Professor of Law, The
      University of Texas at Austin School of Law
      Oral Testimony.................................................    89
      Prepared Testimony.............................................    91
    Brett Tolman, Executive Director, Right on Crime
      Oral Testimony.................................................    94
      Prepared Testimony.............................................    96
    Cedric L. Alexander, Former Public Safety Director, Dekalb
      County, Georgia and Former Member of President Obama's Task
      Force on 21st Century Policing
      Oral Testimony.................................................   100
      Prepared Testimony.............................................   102

              LETTERS, STATEMENTS, ETC. SUBMITTED FOR THE HEARING

    Materials submitted by the Honorable Andy Biggs, Ranking Member
      of the Subcommittee on Crime, Terrorism, and Homeland Security
      from the State of Arizona, for the record
      A letter from Matthew Feeney, Director, Project on Emerging
        Technologies, Cato Institute, July 12, 2021..................     8
      An article entitled, ``Capitol Police to use Army surveillance
        gear to monitor Americans and `identify emerging threats,' ''
        American Military News.......................................    12
      An article entitled, ``Did agents raid home of wrong woman over
        Jan. 6 riot? Maybe,'' AP News................................    14
      An article entitled, ``Search warrant reveals why the FBI
        raided an Alaska couple's home,'' Alaska's News Source.......    18
      An article entitled, ``Homer residents said home was searched
        by FBI in connection to the Jan. 6 Capitol riots,'' Homer
        News.........................................................    21
    Materials submitted by the Honorable Jerrold Nadler, Chair of the
      Committee on the Judiciary from the State of New York, for the
      record
      A document entitled, ``Civil Rights Concerns Regarding Law
        Enforcement Use of Face Recognition Technology,'' June 3,
        2021.........................................................   114
      A letter from Don Erickson, CEO, Security Industry Association,
        July 13, 2021................................................   123
      A statement from Tawana Petty, National Organizing Director,
        Data for Black Lives.........................................   125
      A statement from the Electronic Frontier Foundation............   129
      A statement from the Project on Government Oversight...........   132
    Materials submitted by the Honorable Sheila Jackson Lee, Chair of
      the Subcommittee on Crime, Terrorism, and Homeland Security
      from the State of Texas, for the record
      A report entitled, ``Facial Recognition Technology: Federal Law
        Enforcement Agencies Should Have Better Awareness of Systems
        Used By Employees,'' United States Government Accountability
        Office.......................................................   168
      An article entitled, ``The Problem of Bias in Facial
        Recognition,'' Center for Strategic and International Studies   194
      An article entitled, ``How America's surveillance networks
        helped the FBI catch the Capitol mob,'' The Washington Post..   200
      An article entitled, ``Federal study confirms racial bias of
        many facial-recognition systems, casts doubt on their
        expanding use,'' The Washington Post.........................   208

                                    APPENDIX

    Matrials submitted by the Honorable Sheila Jackson Lee, Chair of
      the Subcommittee on Crime, Terrorism, and Homeland Security
      from the State of Texas, for the record
      A letter from Rashad Robinson, President, Color Of Change, July
        16, 2021.....................................................   214
      A letter from the NAACP Legal Defense and Educational Fund,
        Inc., July 20, 2021..........................................   221

                     QUESTIONS AND RESPONSES FOR THE RECORD

    Questions for Gretta L. Goodwin, Brett Tolman, and Kara
      Frederick, submitted by the Honorable Louie Gohmert, a Member
      of the Subcommittee on Crime, Terrorism, and Homeland Security
      from the State of Texas, for the record........................   236
    Answers from Gretta L. Goodwin, submitted by the Honorable Louie
      Gohmert, a Member of the Subcommittee on Crime, Terrorism, and
      Homeland Security from the State of Texas, for the record......   239
    Answers from Brett Tolman, submitted by the Honorable Louie
      Gohmert, a Member of the Subcommittee on Crime, Terrorism, and
      Homeland Security from the State of Texas, for the record......   242
    Answers from Kara Frederick, submitted by the Honorable Louie
      Gohmert, a Member of the Subcommittee on Crime, Terrorism, and
      Homeland Security from the State of Texas, for the record......   244

      FACIAL RECOGNITION TECHNOLOGY: EXAMINING ITS USE BY LAW ENFORCEMENT

                                  ----------

                             Tuesday, July 13, 2021

                            House of Representatives

            Subcommittee on Crime, Terrorism, and Homeland Security

                           Committee on the Judiciary

                                 Washington, DC

        The Subcommittee met, pursuant to call, at 10:01 a.m., via
    Zoom, Hon. Sheila Jackson Lee [Chair of the Subcommittee]
    presiding.
        Present: Representatives Jackson Lee, Nadler, Bass,
    Demings, McBath, Dean, Scanlon, Cicilline, Lieu, Correa, Cohen,
    Biggs, Jordan, Chabot, Gohmert, Steube, Tiffany, Massie,
    Fitzgerald, and Owens.
        Staff Present: Arya Hariharan, Chief Oversight Counsel;
    John Doty, Senior Advisor; Moh Sharma, Director of Member
    Services & Outreach and Policy Advisor; Jacqui Kappler,
    Oversight Counsel; Priyanka Mara, Professional Staff Member and
    Legislative Aide; Cierra Fontenot, Chief Clerk; Atarah McCoy,
    Staff Assistant; Gabriel Barnett, Staff Assistant; Merrick
    Nelson, Digital Director; Kayla Hamedi, Deputy Communications
    Director; Ben Hernandez-Stern, Counsel, Subcommittee on Crime,
    Terrorism, and Homeland Security; Ken David, Minority Counsel;
    Jason Cervenak, Minority Chief Counsel for Crime; and Kiley
    Bidelman, Minority Clerk.
        Ms. Jackson Lee. The Subcommittee will come to order.
    Without objection, the Chair is authorized to declare recesses
    of the Subcommittee at any time.
        We welcome everyone to this morning's hearing on ``Facial
    Recognition Technology: Examining Its Use by Law Enforcement.''
        Before we begin, I would like to remind Members that we
    have established an email address and distribution list
    dedicated to circulating exhibits, motions, or other written
    materials that Members might want to offer as part of our
    hearing today. If you would like to submit materials, please
    send them to the email address that has been previously
    distributed to your offices and we will circulate the materials
    to Members and staff as quickly as we can.
        I would also ask all Members to mute your microphones when
    you are not speaking. This will help prevent feedback and other
    technical issues. You may unmute yourself any time you seek
    recognition.
        I will now recognize myself for an opening statement.
        As I said, good morning and welcome to a very important
    hearing, one that I hope will generate not only an
    understanding, but as I will ask a number of Witnesses,
    legislative fixes that may be relevant and important in this
    rise of technology matched against a document that has been a
    living document for more than a century, obviously, centuries,
    and that is the Constitution of the United States of America.
        Like many other leaps forward in technology, facial
    recognition technology offers our society both promise and
    peril. Proponents extol the potential benefits of modernized
    policing, greater certainty in law enforcement, safer borders,
    and ultimately a more efficient criminal justice system.
        At the same time, facial recognition systems have clear
    potential for misuse and have been found to be inaccurate at
    identifying certain groups of people.
        Moreover, the technology and how it has been used in
    prosecution raises, as I said earlier, constitutional concerns
    that call into question the basic tenets of fairness and due
    process underpinning all criminal prosecution.
        The criminal consequences implicated by these darker
    elements of facial recognition technology warrant closer
    examination by this body. Congress has found itself at a
    disadvantage in understanding this powerful tool because the
    information on how law enforcement agencies have adopted facial
    recognition technology remains underreported or nonexistent.
        Today, we are bringing facial recognition technology out of
    the shadows and into the light. This dialogue must start with
    the simple question of whether this technology is sufficiently
    accurate to justify its use by the police and if the risks of
    depriving someone of their liberty unjustly are too great.
        To add untested and unvetted facial recognition technology
    to our policing would only serve to exacerbate the systemic
    issues still plaguing our criminal justice system.
        Worse, large-scale adoption of this technology would inject
    further inequity into a system at a time when we should be
    moving to make the criminal justice system more equitable for
    Americans, as we're working very hard to pass the George Floyd
    Justice in Policing Act that was passed out of this particular
    Committee some many, many months ago.
        There are many unknowns, but we can be certain of one
    thing: Most, if not all, facial recognition systems are less
    accurate for people of color and women. For the most part, we
    can be confident that the darker your skin tone, the higher the
    error rate.
        Studies have found error rates in facial recognition
    software to be up to 34 percent higher for darker-skinned women
    than lighter-skinned men. It is not just sometimes wrong, it
    can be wrong up to a third of the time.
        Additionally, a 2019 study by the National Institute of
    Standards and Technology found empirical evidence that most
    facial recognition algorithms exhibit demographic differentials
    that can worsen their accuracy based on a person's age, gender,
    or race. According to the study, systems varied widely in their
    accuracy and depending on the algorithm and type of search.
        America is a multicultural, multi-ethnic Nation. This is
    particularly important as relates to these findings.
        Asian and African-American people were up to 100 times more
    likely to be misidentified than White men. Native Americans had
    the highest false positive rate of all ethnicities.
        Women were more likely to be falsely identified than men.
    The elderly and children were more likely to be misidentified
    than those in other age groups. It could play a really strong
    role in trying to find missing persons, for example, if it was
    to be used in that.
        Middle-aged White men generally benefited from the highest
    accuracy rate.
        Yet, in spite of these flaws, facial recognition technology
    is being rolled out across the country and has in many
    instances proven valuable to law enforcement. From the largest
    Federal law enforcement agencies to small local police
    departments, facial recognition systems are quietly be
    incorporated into American policing.
        There lies the complexity, because you have small
    departments, 18,000 in the United States, that may not have the
    training and are using these technologies.
        We have heard the success stories, such as facial
    recognition technology being used to identify the shooter in
    the tragic Capital Gazette massacre and to help identify
    victims of sex trafficking by matching missing persons photos
    to online ads.
        Most recently we have learned that facial recognition
    technology has been used to identify several of the
    insurrectionists who stormed the citadel of American democracy
    on January 6.
        However, while we must applaud the utilization of new
    technology for the apprehension of domestic terrorists, this
    must be weighed against the fact that many of the systems, both
    privately owned or owned by government entities, operate with
    minimal transparency, limited oversight, and questionable
    informational security.
        Let me remind you again, 18,000 different police
    departments across America of varying sizes, varying training,
    and varying technology capability. Again, it is noted that they
    are using technology, again, with minimal transparency, limited
    oversight, and questionable informational security.
        In some cases, individual employees are testing this
    private software without the knowledge or approval of their
    superiors or supervising agencies.
        Without notice, many communities find facial recognition
    systems deployed in their neighborhoods. The adoption and use
    of facial recognition systems must involve community
    consideration, technological evaluation, and sober legal
    analysis.
        As these trends have developed, the Federal Government has
    been largely absent. What we do not know towers over what we
    do, and that needs to change. Seemingly little thought has been
    put into the widespread adoption of a technology that could
    materially alter community interactions with law enforcement.
        This is the issue this Committee hopes to correct today and
    going forward. This hearing is not meant to prejudge facial
    recognition technology or its value to law enforcement, but
    rather it is an important first step to proactively engage with
    this technology and adapt our laws accordingly.
        As I indicated, it is important that out of this Committee
    hearing we also work on productive and constructive legislation
    as needed.
        I am looking forward to engaging with the Witnesses about
    the benefits and pitfalls inherent in facial recognition
    technology and to forging a way forward towards transparency,
    equity, and accountability in its use.
        It is now my pleasure to recognize the Ranking Member of
    the Subcommittee, the gentleman from Arizona, Mr. Biggs, for
    his opening statement.
        Mr. Biggs. Madam Chair, thank you for yielding time to me
    and I thank you for holding this very important hearing on
    facial recognition technology and its use by law enforcement.
        I think there is so much of what you just said that I can
    associate myself with. There are some things that we can work
    together on a bipartisan basis, not just you and I, but
    hopefully all the Members of the United States Congress.
        Facial recognition technology is a powerful tool when used
    properly. When used improperly or relied upon too heavily, it
    raises some very serious concerns and has some very real world
    negative consequences.
        Today, we'll hear from a Witness who was detained after the
    Detroit Police Department relied on facial recognition
    technology that pointed a finger wrongly at this man.
        Facial recognition technology is not perfect--and actually,
    quite honestly, it's far from it. To be reliable, images must
    be captured in the most favorable conditions with lighting,
    angle, aging, and other factors ultimately reducing
    reliability.
        Worse yet, facial recognition algorithms perform poorly
    when tasked with analyzing the faces of women, people of color,
    elderly, and children.
        I am also concerned about the potential First and Fourth
    Amendment erosions that facial recognition technology can
    cause. Law enforcement agencies could potentially use the
    systems for the surveillance of individuals not involved in any
    suspicious activity whatsoever.
        Moreover, Federal law enforcement agencies with assistance
    from their State and local law enforcement partners have access
    to images of an overwhelming number of otherwise law-abiding
    citizens. State and motor vehicle agencies possess high-quality
    photographs of most citizens that are a natural source for
    facial recognition programs and could easily be combined with
    public surveillance or other cameras in the construction of a
    comprehensive system of identification and tracking.
        Federal law enforcement agencies are also not limited to
    facial recognition technology systems they control or those
    controlled by other law enforcement partners at the State and
    local level. Federal law enforcement can use nongovernment
    facial recognition service providers, such as Vigilant
    Solutions or Clearview AI.
        For example, law enforcement officers with a Clearview AI
    account can use a computer or smartphone to upload a photo of
    an unknown individual with Clearview AI's facial recognition
    system. The system then returns search results that show
    potential photos of the unknown individual as well as links to
    sites where the photos were obtained, such as Facebook or
    Instagram.
        The use of facial recognition technology is largely
    unregulated and raises numerous concerns. The government could
    use facial recognition technology to monitor or target people
    exercising their First Amendment rights, including freedom of
    association.
        Facial recognition technology also poses significant
    privacy concerns, and improper use could violate the Fourth and
    First Amendment rights protecting people from unreasonable
    searches and seizures and guaranteeing freedom of association.
        With these constitutional reliability concerns with this
    technology, the GAO just issued a report indicating that not
    only had the Federal law enforcement agencies not assessed
    privacy and other risks associated with the use of this
    technology, but some of them don't also even know which systems
    their agents are using.
        So, in sum, I think this is a real opportunity for us to
    gain some important information and knowledge today. I have
    enormous concerns that I will summarize here.
        The technology here is absolutely problematic and
    inconsistent. It's not been perfected. Images of law-abiding
    people have been acquired. The security of the databases is an
    issue, as we have seen with recent breaches of databases.
    Private companies acquiring and scraping information and data
    and selling it to the feds and other law enforcement.
    Manipulation and enhancements of photos can take place. It
    expands the surveillance State that we have been railing
    against. The GAO report gave some important concerns.
        Those are just some of my--that's a brief summary of some
    of these things that I am concerned with. I do think it's a
    place where we can work, Madam Chair, to find common ground.
        If we're talking about nationalizing police forces, I don't
    think we'll get there. If we're talking about finding some kind
    of meaningful regulation and oversight of the implementation of
    facial recognition technology, which I think is what the Chair
    is alluding to, then I think we can find a lot of common ground
    here.
        With that, Madam Chair, I would like to submit for the
    record a letter to the Committee dated July 12, 2021, from
    Matthew Feeney of the Cato Institute.
        Ms. Jackson Lee. You want to finish the letter explanation?
        Mr. Biggs. Yes. Yes, if I can, please.
        Also, I wish to submit an article from American Military
    News from July of 2021 regarding the Capitol Police adoption of
    Army surveillance gear to monitor Americans and identify
    threats.
        I also wish to include several articles about the Alaskan
    couple that through facial recognition technology that was
    erroneously used. One would be an AP news article on riots,
    technology, capitol siege, and government and politics, another
    one from Alaska's News Source, and another one from
    Homenews.com, if it's possible, Madam Chair.
        Ms. Jackson Lee. Without objection, so ordered.
        [The information follows:]

                            MR. BIGGS FOR THE RECORD

    =======================================================================

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        Ms. Jackson Lee. I thank the Ranking Member of the
    Subcommittee for his presentation and his opening statement.
        I do believe that, as I indicated, we should be engaged in
    both oversight and legislative response, and I would like to
    find common ground with our colleagues. Because I think this is
    very, very important both in terms of law enforcement and the
    utilization thereof, but also for the constitutional principles
    which we all believe in.
        It's now my pleasure to recognize the distinguished Chair
    of the Full Committee, the gentleman from New York, Chair
    Nadler, for his opening statement.
        Chair Nadler. Well, thank you very much. I thank Chair
    Jackson Lee for convening this hearing on the use of facial
    recognition by law enforcement.
        Facial recognition technology is now able to capture images
    and analyze them in ways that would have been completely
    impossible only a decade ago. In some cases, the technology
    enables the real-time surveillance and matching of individuals
    in a crowd.
        As facial recognition technology has proliferated in a
    manner largely unchecked by Congress, we now live in a world
    where biometric data is collected by private businesses,
    schools, State and local agencies, and as is the focus of this
    hearing, by law enforcement agencies at all levels of
    government.
        There is a tension that we must address. On the one hand,
    this technology is now a commonplace fixture in our lives. On
    the other hand, most Americans have little understanding of how
    the police use facial recognition technology to conduct
    surveillance of communities across the country--for better for
    or worse.
        Thanks to the work of the Government Accountability Office,
    we have our first glimpse into Federal law enforcement's use of
    facial recognition technology. In its recent study, GAO found
    that 20 of the 42 Federal law enforcement agencies surveyed
    used some form of facial recognition technology.
        This report, although an important first step, leaves many
    unanswered questions about how the technology is used, when it
    is used, and what type of mechanisms are in place to guard
    against abuse or to protect sensitive data.
        For example, of the 14 Federal agencies that said they used
    non-Federal systems, only one agency could provide the GAO with
    complete information about what systems their employees were
    actually using in the field.
        The picture at the State and local level is even more
    opaque, but we have received several disturbing reports of the
    misapplication of facial recognition technology by local police
    departments. For example, this technology has proven
    particularly unreliable when attempting to match women and
    people of color.
        In some cases, facial recognition is deployed without
    proper consideration of due process rights. One Witness here
    today, Mr. Williams, will testify to the profound impact that
    misidentification under these circumstances can have on an
    individual's life.
        Simply put, Mr. Williams deserves better from the law
    enforcement agencies entrusted to use a technology that we all
    know is less accurate when applied to citizens who look like
    him.
        Facial recognition technology can be an important crime-
    fighting tool. Like all such tools, we need to ensure that the
    adoption of this new technology does not further erode trust
    between law enforcement and the communities they serve and does
    not compound the unfairness of a criminal justice system that
    too often disproportionately impacts people of color.
        Today, this Subcommittee begins to ask the critical
    questions surrounding police use of facial recognition
    technology. The hearing will not answer every question about
    the adoption of facial recognition technology by law
    enforcement, but my hope is that we will take another important
    step toward balancing the needs of law enforcement agencies,
    the priority of keeping Americans safe from crime, and the
    valid concerns about this technology expressed by communities
    across this country.
        Our task is not an easy one. We want an America where every
    individual knows that they and their families are safe from
    harm, while our fundamental rights are protected. We want an
    America where law enforcement has the tools it needs to protect
    and serve, but with clear guidelines and rules that prevent
    those tools from being abused.
        Understanding how to make that vision real at a moment when
    technology keeps changing and evolving will take a tremendous
    amount of work, but this is work worth doing.
        Again, I thank the Chair for calling this hearing. I look
    forward to hearing from our Witnesses, especially Bertram Lee,
    who once worked for my office way back when.
        It's good to see you, and I look forward to your testimony.
        I thank all the Witnesses for taking their time to engage
    with us on this important topic, and I look forward to their
    testimony.
        I yield back the balance of my time.
        Ms. Jackson Lee. I thank the Chair very much for his
    important presentation.
        Now, it's my pleasure to recognize the distinguished
    Ranking Member of the Full Committee, the gentleman from Ohio,
    Mr. Jordan, for his opening statement.
        Mr. Jordan. Thank you, Madam Chair.
        I look forward to today's hearing on facial recognition
    technology. I am hopeful we can approach this issue in a truly
    bipartisan manner, as has been mentioned by some previous
    statements.
        Last Congress, we worked closely with our colleague, the
    late Chair Elijah Cummings, on this very issue. While we had
    many vigorous debates on a variety of issues, facial
    recognition technology was one issue where we shared common
    ground. So much so, that we held three bipartisan hearings in
    the Oversight Committee on this technology.
        In those hearings, we learned many important facts about
    facial recognition technology. There are serious First and
    Fourth Amendment concerns about the use of FRT by law
    enforcement.
        There are also due process concerns about how law
    enforcement uses this technology. We learned, for example, that
    over 20 States' departments of motor vehicles have handed over
    their driver's license data to the FBI.
        No American citizen gave their consent to have their data
    and images turned over to the FBI. No elected official ever
    voted to allow this to happen. Every American should be
    troubled by this. I know I am, and I hope my colleagues on this
    Committee are as well.
        Almost two weeks ago, the GAO issued a new report about how
    Federal law enforcement uses FRT. This report makes clear that
    the Federal law enforcement agencies using facial recognition
    technology haven't even assessed the risk when using this
    technology. If they haven't even assessed the risks, they
    certainly aren't taking them into consideration when they're
    using the technology.
        GAO has surveyed Federal law enforcement agencies on their
    use of facial recognition technology; 14 agencies that reported
    using the technology to support criminal investigations also
    reported using systems owned by non-Federal entities. Only one
    agency had awareness of what non-Federal systems are used by
    its employees.
        In other words, not only are Federal law enforcement
    agencies not assessing the risk of using facial recognition
    technology, most don't even know which systems their employees
    are using.
        I imagine it's difficult for a Federal agency to assess the
    risk of using a system if it doesn't even know which system it
    is using.
        I look forward to learning more from GAO on this recent
    report and our other Witnesses on the path forward.
        With that, Madam Chair, I yield back.
        Ms. Jackson Lee. I thank the gentleman for his opening
    statement.
        Without objection, all other opening statements of our
    Members will be included in the record.
        I will now introduce today's Witnesses, and let me again
    thank them for their participation. This is a virtual hearing
    that is no less crucial and important, and we thank you for
    participating in that manner of technology.
        The first Witness is Director Gretta Goodwin. Gretta L.
    Goodwin is a Director in the Homeland Security and Justice team
    at the U.S. Government Accountability Office where she leads
    GAO's work on justice and law enforcement issues. Her portfolio
    includes Federal law enforcement oversight and training, civil
    liberties, civil rights, vulnerable populations, the Federal
    prison system, and the Federal judiciary.
        Director Goodwin has a Ph.D. and a master's degree in
    economics from the University of Nebraska, Lincoln, and a
    bachelor's degree in economics from the University of Houston.
        I am glad to see there's a Houston connection and the
    university that I happen to represent.
        Welcome.
        Professor Barry Friedman serves as a Faculty Director of
    the Policing Project at New York University School of Law where
    he is the Jacob D. Fuchsberg Professor of Law and affiliated
    professor of politics.
        Professor Friedman has taught, litigated, and written about
    constitutional law for the Federal courts, policing, and
    criminal procedure for over 30 years, and has produced numerous
    books and articles, appearing in various scholarly journals and
    popular media outlets.
        Professor Friedman graduated with honors from the
    University of Chicago and received his law degree magna cum
    laude from Georgetown University Law Center.
        Welcome.
        Robert Williams is a 43-year-old man who lives in
    Farmington Hills, Michigan, with his wife and two young
    daughters. He works as a logistics planner in the automotive
    industry. Mr. Williams was wrongfully arrested by the Detroit
    Police Department in 2020 when facial recognition technology
    misidentified him.
        Mr. Williams, we apologize to you and very grateful for the
    testimony that you will be presenting here today.
        Welcome.
        Bertram Lee, Jr., is a counsel for media and technology at
    the Leadership Conference on Civil and Human Rights where he
    works to advance the interests of marginalized communities in
    technology and media policy. His portfolio includes broadband
    access, media diversity, facial recognition, law enforcement
    surveillance technology, section 230 of the Communications
    Decency Act, and algorithmic bias in artificial intelligence.
        Previously, Mr. Lee worked as Policy Counsel at Public
    Knowledge and at the U.S. House Committee on Education and
    Labor under Chair Robert C. Scott.
        He received his J.D. from Howard University School of Law
    and his B.A. from Haverford College.
        Welcome.
        Kara Frederick is a Research Fellow at the Center for
    Technology Policy at the Heritage Foundation. Her research
    focuses on Big Tech and emerging technology policy.
        Among her prior roles, Ms. Frederick was a fellow at the
    Center for New American Security, served as a Senior
    Intelligence Analyst for a U.S. Naval Special Warfare Command,
    and helped create and lead Facebook's Global Security
    Counterterrorism Analysis Program.
        She received her M.A. in war studies from King's College
    London and her B.A. in foreign affairs and history from the
    University of Virginia.
        Welcome.
        Professor Jennifer Laurin serves as the Wright C. Morrow
    Professor at the University of Texas School of Law where she
    studies and writes about how law and institutional design shape
    the functioning of criminal justice institutions.
        She also currently serves as reporter to the American Bar
    Association's Criminal Justice Standards Task Force and is a
    former Chair of the Texas Capital Punishment Assessment team
    organized under the auspices of the American Bar Association.
        Professor Laurin received her undergraduate degree in
    politics from Earlham College and her J.D. from Columbia Law
    School.
        Welcome to you from Texas.
        Brett Tolman is the Executive Director for Right on Crime.
    He is the founder of the Tolman Group and previously served as
    a shareholder at the law firm of Ray Quinney & Nebeker PC.
        Previously, Mr. Tolman also served as the U.S. attorney for
    the District of Utah and was selected by Attorney General
    Michael Mukasey to serve as a special adviser to the Attorney
    General on national and international policy issues affecting
    United States attorneys in the Department of Justice.
        Prior to becoming U.S. attorney, Tolman served as legal
    counsel to the United States Senate Judiciary Committee.
        He received his B.A. and his J.D. from Brigham Young
    University.
        Welcome.
        Dr. Cedric Alexander is a law enforcement expert with over
    40 years of experience in public safety. He has appeared on
    national media networks to provide comment on police-community
    relations and has written numerous editorials and books on the
    subject.
        Previously, Dr. Alexander has served as Deputy Commissioner
    of the New York State Division of Criminal Justice Services, as
    Chief of Police of DeKalb County, Georgia, and as national
    President of the National Organization of Black Law Enforcement
    Executives, a very powerful law enforcement organization. He
    was also appointed to serve on President Obama's Task Force on
    21st Century Policing.
        He received a B.A. and a master's degree from St. Thomas
    University in Miami, Florida, and a doctorate from Wright State
    University.
        Welcome.
        Usually, I stand when I provide the oath, but we welcome
    our distinguished Witnesses and we thank them for their
    participation today. So, I will begin by swearing in our
    Witnesses.
        If you would please turn on your audio. Make sure I can see
    your face and your raised right hand while I administer the
    oath. Please unmute and let me see your raised right hand.
        Do you swear or affirm, under penalty of perjury, that your
    testimony you are about to give today to be true and correct to
    the best of your knowledge, information, and belief, so help
    you God?
        I need to hear an audible ``I do.''
        Thank you so very much.
        Let the record show the Witnesses have answered in the
    affirmative.
        Thank you so very much.
        Please note that each of your written statements will be
    entered into the record in its entirety. Accordingly, I ask
    that you summarize your testimony in five minutes. There is a
    timer in the Zoom view that should be visible on your screen.
        Director Goodwin, you may begin. Welcome. You are
    recognized for five minutes.

                     STATEMENT OF GRETTA L. GOODWIN

        Dr. Goodwin. Thank you Chair Nadler, Chair Jackson Lee,
    Ranking Member Jordan, Ranking Member Biggs, and Members of
    this Subcommittee, I am pleased to be here today to discuss
    Federal law enforcement's use of facial recognition technology.
        Use of this technology has expanded in recent years, and
    questions exist regarding the accuracy of the technology, the
    transparency in its usage, and the protection of privacy and
    civil liberties when the technology is used.
        Today, I will discuss:

            (1)  The ownership and use of facial recognition technology by
            Federal agencies that employ law enforcement officers;
            (2)  the types of activities these agencies use the technology
            to support; and
            (3)  the extent that these agencies track employee use of the
            technology, especially those owned by non-Federal entities, as
            well as the potential privacy and accuracy implications.

        We surveyed 42 Federal agencies that employ law enforcement
    officers. Twenty of them report that they owned a system with
    facial recognition technology or used another entity's system.
        Of these 20 agencies, three own their own system, 12 only
    used another entity's system, and five agencies both owned a
    system and used another entity's. These agencies noted that
    some systems can include hundreds of millions or billions of
    photos.
        Federal agencies reported using facial recognition
    technology to support various activities, such as criminal
    investigations, surveillance, and managing business operations
    during the COVID-19 pandemic.
        Of the 20 agencies that owned or used the technology, 14
    reported using it to support criminal investigations, including
    investigations of violent crimes, credit card and identity
    fraud, and missing persons.
        Looking more closely at these 14 agencies, some of them
    told us that they used the technology last summer to support
    criminal investigations related to civil unrest, riots, or
    protests following the killing of Mr. George Floyd in May of
    2020.
        In addition, a few of these agencies told us they used the
    technology on images from the U.S. Capitol attack on January 6
    of this year to generate leads for criminal investigations.
        Of these 14 agencies, we found that 13 did not have
    complete, up-to-date information on what non-Federal systems
    are being used by their employees. So, agencies have not fully
    assessed the potential risk related to privacy and accuracy of
    using these systems.
        To be clear, some agencies knew that employees were using
    certain systems. For example, agencies may have had formal
    agreements with States or contracts with private companies.
        However, many agencies had to poll their employees to
    answer our questions. Multiple agencies initially told us they
    didn't use the technology and later changed their answers after
    talking with employees.
        What these 13 agencies all have in common is that they
    don't have a process to track what Federal systems employees
    are using.
        Although the accuracy of facial recognition technology has
    increased dramatically in recent years, risk still exists that
    searches will produce inaccurate results. If a system is not
    sufficiently accurate, it could unnecessarily identify innocent
    people as investigative leads.
        The system could also miss investigative leads that would
    otherwise have been revealed.
        Moreover, the technology's high error rates for certain
    demographic groups could result in adverse consequences for
    individuals.
        Accordingly, we recommended that agencies implement a
    mechanism to track what non-Federal systems with facial
    recognition technology are used by employees to support
    investigative activities and assess the risk of using such
    systems, including privacy- and accuracy-related risks.
        Facial recognition technology's capabilities are only going
    to grow stronger. If law enforcement agencies do not know if or
    how their employees are using the technology, then they cannot
    ensure that the appropriate protections are in place.
        Chair Nadler, Chair Jackson Lee, Ranking Member Jordan,
    Ranking Member Biggs, and Members of this Subcommittee, this
    concludes my remarks. I am happy to answer any questions you
    have.
        [The statement of Dr. Goodwin follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Ms. Jackson Lee. Thank you for your testimony.
        I am now pleased to recognize Professor Barry Friedman for
    five minutes.

                      STATEMENT OF BARRY FRIEDMAN

        Mr. Friedman. Chair Jackson Lee, Chair Nadler, Ranking
    Members Jordan and Biggs, Members of the Subcommittee, I want
    to thank you for giving me the opportunity to testify today.
        As my introduction indicated, I am the founding director of
    the Policing Project at New York University School of Law. I
    want to tell you our mission because it relates directly to
    what you're doing today.
        We are an organization that partners with all stakeholders.
    We work in impacted communities, communities impacted by law
    enforcement, we also work closely with law enforcement
    agencies, with the goal of bringing to policing democratic
    accountability, transparency, and equity, particularly around
    issues of race.
        I want to stress two parts of that because I think they
    relate directly to this hearing.
        First, the issue of democratic accountability. It's our
    position--this is one my key points that I'd like to make
    today--that these technologies should not be used without
    proper democratic accountability. Accordingly, I commend this
    Subcommittee for having this hearing to pursue what I think is
    essential legislation in this area.
        Second, I want to stress that we do work with all
    stakeholders across the ideological spectrum. I was incredibly
    gratified to listen to all the Members who spoke to the need
    and the ability to work in a bipartisan way on this issue.
        I believe that there are strong, passionate feelings about
    this technology. It's very powerful technology. There is a way
    forward on the technology, and the question is, how do we get
    there? So, I want to turn to that.
        The approach that we use at the Policing Project,
    particularly for emerging technologies around policing, is one
    of cost-benefit analysis.
        We look at the benefits of the technology. As many of you
    said, there are definitely benefits that can be obtained from
    this technology.
        Then we look at the costs. As many of you have indicated,
    there are very, very serious costs, very, very serious
    potential harms. There are racial harms from the disparities.
    There are privacy harms. There are harms of giving too much
    power to governments, as we can all see by use of this
    technology by totalitarian governments. There are concerns
    about the First Amendment.
        Now, some people look at cost-benefit analysis and they
    think, okay, well, we weigh the costs, we weigh the benefits,
    we decide whether to do something or not.
        That's exactly the wrong approach. The value of cost-
    benefit analysis or benefit-cost analysis is that we can find a
    nuanced way to regulate that can maximize the benefits and
    minimize or mitigate entirely the harms. That's what I want to
    talk about.
        I have spoken to many, many people over the last months
    and, in fact, years about this issue. There are strong views on
    both sides, including some people who after much reason think
    that the technology should be banned.
        The fact of the matter is that when I am talking to law
    enforcement or when I am talking to civil libertarians or
    racial justice advocates, whether I am talking about to people
    in the technology companies themselves, even though they
    disagree about the use of the technology and about many things,
    there's a wide swath of agreement about what isn't okay in the
    use of the technology, about what are shoddy and dangerous
    practices that should be regulated.
        I want to just dive very quickly into some of the nuance of
    those practices, and you have a longer enumeration in my
    testimony, and I am happy to answer any questions.
        So, first, issues of accuracy and bias. We've heard a lot
    about that. I think it's time, and I hope that we will all stop
    saying things like the technology is 87, 93, or 95 percent
    accurate. That doesn't mean anything. We should be talking
    about false negatives and false positives. That's what matters.
        The truth of the matter is we don't know anything about the
    accuracy of this technology when law enforcement uses it. That
    is because law enforcement uses the technology in a way
    different than it has been tested by NIST. Law enforcement uses
    different probe images than NIST has tested. Law enforcement
    uses much larger databases than NIST has tested. As you think
    about it, the error rates just increase as the databases get
    larger. We don't even know if NIST has tested the actual
    algorithms that law enforcement is using.
        Now, a lot of people say, ``Okay. Not to worry. There's a
    human in the loop.'' Now, I would appeal to your common sense.
    We don't have enough science, but we have some. Humans in the
    loop can be a good thing or a bad thing.
        Humans in the loop would be a good thing if an independent
    individual who had no idea what the algorithm had suggested
    identified the same person.
        Humans in the loop are problematic if all they're doing is
    confirming what the algorithm told them.
        So, again, we need testing and methods of ensuring that if
    there's a human in the loop, that human is actually working in
    a way to make sure that we eliminate concerns about accuracy
    and demographic--particularly racial--bias.
        Finally, I want to urge you to think very seriously about
    regulating the vendors themselves. That's the touch point.
    Those are the folks that know how the technology works and what
    can be done to make it work. They could work on what are
    acceptable probe photos, what are the right settings to make
    sure we get accurate results.
        I have a long list of things the vendors could regulate,
    but I am out of time. So, I am just going to thank you for
    listening to my testimony, and I am happy to answer questions.
        [The statement of Mr. Friedman follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Ms. Jackson Lee. Thank you very much, Professor Friedman.
        It's now my pleasure to recognize Mr. Robert Williams.
        Welcome, Mr. Williams. Again, I indicated my apologies. We
    are the presiders over law enforcement in this Nation, and,
    certainly, we welcome your very important testimony. Thank you.
        You are recognized for five minutes.

                      STATEMENT OF ROBERT WILLIAMS

        Mr. Williams. Thank you. Okay. Chair Nadler, Chair Jackson
    Lee, Ranking Member Jordan, Ranking Member Biggs, and Members
    of the Subcommittee, thank you for the opportunity to testify
    today.
        Last--well, not last, but January 2020, I got a call from
    my wife, and she told me that some detectives called her to
    tell me to turn myself in. She said they'd be calling me
    shortly because they didn't have my phone number.
        They called me. I answered and said--I asked them what it
    was about. He told me he couldn't tell me. All we know is that
    I need to turn myself in.
        I assumed it was a prank call, and I hung up and called my
    wife and told my wife to disregard it, who was irate and
    thinking that maybe I was trying to hide something from her.
        So, I told her to call our local police department. She
    did. They said they had no warrants or anything for my arrest
    and I should disregard the call.
        So, I proceeded to drive home. When I got home, there was a
    Detroit police car parked on my street. When I pulled in the
    driveway, he pulled in my driveway and blocked me in as if I
    was going to make a run for it.
        He pulled up. He said, ``Are you Robert Williams?'' I said,
    ``Yes, I am.'' He said, ``You're under arrest.'' I said,
    ``Whoa, you can't just arrest me for that. What am I under
    arrest for?'' He said, ``Don't worry about it,'' and proceeded
    to put the handcuffs on me.
        I told my wife and my kids who were coming out of the house
    at the time, ``Don't worry about it, they are making a mistake.
    I'll be right back.''
        Unfortunately, I wasn't right back. I ended up spending 30
    hours in jail--well, at the detention center.
        While I was in the car, I asked them again, ``Why am I
    being arrested?'' They said, ``We can't tell you that.'' They
    showed me the warrant that said ``felony larceny'' on it. I'm
    like, ``I didn't steal anything.'' I'm like, ``How do we get
    the warrant?'' He said that a detective will be in to talk to
    me.
        I was in the detention center in an overcrowded cell. The
    garbage was overflowing. There was a lot of less desirables in
    there talking about things that they had done and things that
    they had got away with. I am just like, ``Why am I here?''
    Nobody ever came to tell me.
        So, the next day, when I went to court, I pleaded not
    guilty. They took a recess, and then some detectives came and
    asked me some questions. When they came to ask questions, they
    had me sign a paper saying that I will waive my right to
    counsel so they could show me what was on the papers. I signed.
        He showed me a picture. He said, ``When was the last time
    you was at the Shinola store?'' I said, ``A couple of years
    ago.'' He said, ``So, that's not you?'' I said, ``No, that's
    not me.''
        He turns over another piece of paper. He said, ``So, I
    guess that's not you either?'' I held that piece paper up to my
    face and said, ``I hope you don't think all Black people look
    alike.''
        He turned over another paper and said, ``So, I guess the
    computer got it wrong.'' I am like, ``I guess so. Am I free to
    go?'' He was like, ``I'm sorry for this mishandling, but we're
    not the detectives on your case so we can't let you go,'' so
    they sent me back to my cell.
        I got out. I received a bond, and I got out. My wife
    contacted the ACLU, and we started getting the information
    about the case, and we realized that it was a wrong facial
    recognition technology used.
        I just have been fighting for it ever since. I just don't
    think it's right that my picture was used in some type of
    lineup, and I have never been in trouble.
        With that being said, I would just like to say thank you
    for the opportunity to share my testimony. I hope that Congress
    does something about this law. I am happy to take any more
    questions that you might have for me.
        [The statement of Mr. Williams follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Ms. Jackson Lee. Powerful statement, Mr. Williams. You are
    tracking what I began with as I opened this hearing, that not
    only should we engage in oversight, but I do think we should
    engage in the right kind of fix. I am very apologetic to you
    and your family for having to go through this.
        Our next Witness is Mr. Bertram Lee, Jr. You are recognized
    for five minutes.

                     STATEMENT OF BERTRAM LEE, JR.

        Mr. Lee. Chair Jackson Lee, Chair Nadler, Ranking Member
    Jordan, Ranking Member Biggs, and Members of the Subcommittee,
    thank you for the opportunity to testify today.
        Thank you, Chair Jackson Lee and Chair Nadler, for calling
    this hearing and shining a light on the serious and undeniable
    threat that facial recognition technology poses, especially to
    Black and Brown people and other marginalized communities.
        We are at a turning point. We must reject policies and
    practices rooted in discrimination towards marginalized
    communities and move toward a new paradigm for public safety
    that respects the humanity, dignity, and human rights of all
    people.
        The Leadership Conference has spoken out against law
    enforcement use of facial recognition since 2016, how we're
    adding the inherent bias of these tools and their disparate
    impact on marginalized communities that are already
    overpoliced.
        Last month, The Leadership Conference, along with Upturn
    and New America's Open Technology Institute, released a
    statement signed by 40 advocacy organizations that outlined six
    of our most pressing civil rights concerns about facial
    recognition technology, including that its use exacerbates the
    harms of policing in communities that are already targeted by
    police; threatens individual and community privacy by allowing
    invasive and persistent tracking and targeting; chills First
    Amendment-protected activities; violates due process rights and
    otherwise infringes upon procedural justice; often relies on
    face prints that have been obtained without consent.
        Lastly, in addition to racial bias with respect to how law
    enforcement uses facial recognition, the technology itself
    poses a disproportionate risk of misidentification for Black,
    Asian, and Indigenous people.
        The possibility for misidentification and misclassification
    poses a tremendous threat to the health, safety, and well-being
    of communities. The reason for these problems and inherent
    biases varies. In some cases, the cause of the bias lives
    within the database that an image is searched against. In
    others, it is due to the historical bias built into the
    algorithm itself.
        The end result, however, is the same: Black people are
    disproportionately represented in law enforcement facial
    recognition databases, and inequitable error rates further
    entrench racial disparities in the criminal legal system.
        For example, in a comparison of match rates by country of
    origin, photos of people from East African countries had false
    rates a hundred times higher than the baseline rate.
    Researchers also found that some facial analysis algorithms
    misclassified Black women nearly 35 percent of the time while
    always getting it right for White men.
        Even if the accuracy of facial recognition technology was
    improved, the fundamental issue remains: Facial recognition
    technology dangerously expands the scope and power of law
    enforcement.
        When combined with existing networks of surveillance
    cameras dotting our urban and suburban landscapes, facial
    recognition algorithms could enable governments to track the
    public movements, habits, and associations of all people at all
    times, merely with the push of a button.
        According to a report from the Georgetown Center on Privacy
    and Technology, more than 133 million American adults are
    included in facial recognition networks across the country, and
    at least one in four State or local police departments can run
    facial recognition searches through their own network or the
    network of another agency.
        As facial recognition technology rapidly emerges in
    everyday police activities, safeguards to ensure this
    technology is used fairly and responsibly are virtually
    nonexistent.
        As Congress considers how our Nation's systems of policing
    and punishment disproportionately harm communities of color, it
    must decelerate law enforcement's ability to wield such
    powerful technology, particularly when the history and recent
    abuses provide little reason to think it would be used
    responsibly.
        We are safer when our communities are healthy, well-
    resourced, and thriving. Policies of mass criminalization and
    over policing are fueled by White supremacy, not a belief in
    justice, and tools like facial recognition technology are about
    social control, not public safety.
        The Leadership Conference urges Members of Congress to Act
    now to protect the public from this technology, specifically by
    implementing a ban or moratorium on law enforcement use of
    facial recognition tools.
        Families and communities will continue to endure
    unspeakable harm and tragedy on our government's watch as long
    as we allow these policies to continue. Time is of the essence.
        The Leadership Conference looks forward to working closely
    with the Subcommittee to address the serious concerns with this
    technology and work toward a new vision of justice that truly
    keeps communities safe.
        Thank you.
        [The statement of Mr. Lee follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Ms. Jackson Lee. Thank you very much for your testimony,
    and as well for that insightful constitutional analysis, which
    is extremely important.
        Now, I would like to recognize Ms. Kara Frederick for five
    minutes.

                      STATEMENT OF KARA FREDERICK

        Ms. Frederick. Chair Nadler, Chair Jackson Lee, Ranking
    Member Jordan, Ranking Member Biggs, thank you for the
    opportunity to testify today.
        In four years, a projected six billion people will have
    access to the internet, with 80 billion devices connected to
    the Web. This creates profound digital surveillance
    opportunities. Facial recognition is a standout capability.
        Some uses of facial recognition comprise legitimate public
    safety imperatives--finding the Capital Gazette shooter, as the
    Chair mentioned, and detecting individuals using fake
    passports. The potential for abuse by agents of the State is
    also high. Risks are manifold, like inaccurate algorithms and
    data security vulner-
    abilities.
        I want to focus on three risks in particular.

            (1)  The circumscription of civil liberties and individual
            privacy. The FBI is leading the way in the use of facial
            recognition for domestic surveillance. Today, the Bureau has
            access to over 640 million photos, in some cases through the
            use of private companies that scrape social media sites
            unbeknownst to the subject.
            (2)  Outsourcing that surveillance to unaccountable private
            companies. Reports that the Biden Administration intends to
            expand the use of private companies unencumbered by
            constitutional strictures and with a history of reckless
            privacy practices are troubling.

        Although government entities, like DHS, have long used
    private firms to identify patterns in publicly available
    information, a renewed push to make use of outside expertise
    for domestic spying on the heels of the new White House plan to
    counter domestic extremism portends potential Fourth Amendment
    concerns.
        Such impulses to outsource domestic surveillance can lead
    to more expansive monitoring by law enforcement, which leads to
    the third risk:

            (3)  The potential integration of facial recognition data with
            other PII through the expansion of mass surveillance.

        The technical capabilities are already here. Now, multiple
    data sources can be aggregated and synchronized to allow
    governments to look for patterns in citizens' behavior. Faster
    networks with lower latency provide quick transmission and
    higher throughput to handle increased data flows.
        More compute power and options, along with developments in
    machine learning and analytics that extract value from data,
    all fit together in mutually reinforcing ways, combining to
    weave diverse data streams into a grid of total surveillance if
    desired.
        This can engender a climate of fear, self-censorship, and
    the chilling of free speech and the right to peaceably assemble
    in public places.
        While authoritarian powers like China are at the bleeding
    edge of using facial recognition for internal control, the
    demonstrated inclination by governments to expand these powers
    in democratic nations renders the slope a slippery one. We know
    that once these powers expand, they almost never contract.
        The trend lines are foreboding. The United States nearly
    matches China in its surveillance coverage with one camera for
    every 4.6 people compared to China's one for 4.1 individuals.
        Municipalities are using COVID as justification for
    expanded surveillance, as in the case of Peachtree Corners,
    Georgia, which became the first U.S. city to use AI-driven
    smart cameras to monitor social distancing and the use of masks
    this year.
        Combined with near-historic low levels of public trust in
    the government to do what is right, the unfettered deployment
    of these technologies will continue to strain the health of the
    body politic without immediate and genuine safeguards.
        Technology has long outpaced our efforts to govern it. To
    constrain abuse and bound expansion, Congress should establish
    a Federal data protection framework with appropriate standards
    and oversight for how U.S. user data is collected, stored, and
    shared by Federal, State, and local entities.
        The initial focus of the effort should establish clear
    policies on data retention, categorize biometric surveillance
    data as sensitive data, and limit interoperability and data
    integration practices to stymie mass surveillance.
        Congress should ensure that U.S. identity management
    systems are secure and reliable, based on proper standards and
    measurements, and in accordance with NIST guidelines.
    Programmers should build in data privacy protections in the
    design phase, testing new methods of encryption or differential
    privacy, decentralized models of data storage, or federated
    models of machine learning for these systems.
        In sum, the debate over public safety and privacy trade-
    offs in our Republic provides an opportunity for us to embed
    technology with privacy protections from the outset and to
    shore up a system of checks and balances to address privacy
    infringements that do occur.
        We are balanced on a razor's edge. How we decide to use and
    safeguard these technologies today either draws us closer to
    the free and open Republic we should be or closer to the
    authoritarian states whose surveillance practices we profess to
    abhor.
        I look forward to taking your questions.
        [The statement of Ms. Frederick follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Ms. Jackson Lee. Thank you very much for your testimony.
        We're now able to recognize Professor Laurin for five
    minutes.

                    STATEMENT OF JENNIFER E. LAURIN

        Ms. Laurin. Chair Jackson Lee, Chair Nadler, Ranking Member
    Biggs, Ranking Member Jordan, and Members of the Subcommittee,
    thank you very much for the opportunity to address the
    Subcommittee on the topic of facial recognition technology.
        I will speak to a small but important sliver of this vast
    and complex topic that intersects with my own research and
    teaching on forensic science and criminal investigation and
    adjudication. The three bottom line points I want leave you
    with are these.

            (1)  Although facial recognition technology matches have not
            been held to be admissible as evidence in criminal cases, law
            enforcement use of facial recognition to identify suspects does
            form the basis for arrests, criminal convictions, and periods
            of incarceration in the Federal and State systems.
            (2)  While facial recognition has the capacity to be highly
            accurate under ideal conditions, there is greatest cause for
            concern about accuracy when used in criminal investigations.
            (3)  That the criminal legal system is not itself well-designed
            to screen out mistaken or unreliable fruits of facial
            recognition technology.

        To begin with the first point, facial recognition
    technology does lead to deprivations of liberty. Courts do not
    currently admit testimony or other evidence of facial
    recognition matches to establish that a defendant is the
    perpetrator of a crime.
        However, evidence of facial recognition matches has been
    relied upon by courts in stages of criminal cases that are not
    governed by rules of admissibility, for example, in bail
    hearings to support decisions ordering pretrial detention, and
    in sentencing to find facts that enhance a defendant's
    sentence.
        Perhaps more critically, the overwhelming majority of
    criminal prosecutions begin and end with no presentation of
    evidence before a jury at all. I refer, of course, to the
    nearly 98 percent of Federal criminal convictions obtained
    through guilty pleas.
        In those cases, given the decidedly low evidentiary
    threshold of probable cause to arrest, facial recognition-
    generated matches can generate a criminal conviction without
    any courtroom testing of the government's evidence.
        Moreover, even when facial recognition is used by law
    enforcement only to generate an initial lead, that early facial
    recognition match has the potential, particularly given the
    stickiness of cognitive biases and the very real potential for
    facial recognition matches to influence subsequent
    identifications, as Professor Friedman indicated, the capacity
    to send investigators down an erroneous path that even if
    ultimately corrected has enormous consequence for a wrongly
    accused individual like Mr. Williams.
        The fact that facial recognition is shaping outcomes in
    criminal investigation and adjudication would be of little
    concern if there were no reason to question its accuracy as a
    means of identifying suspects. As others have already noted
    today, despite significant advances, significant concerns
    remain about facial recognition's accuracy.
        There are at least two reasons why the criminal
    investigative context raises special worries.

            (1)  As has already been discussed, the fact that there is
            significant variability and accuracy among facial recognition
            vendors, paired with the disturbing GAO findings that Federal
            agencies rely on a wide variety of--and sometimes unknown--
            facial recognition systems, points to an urgent need for
            disclosure of and perhaps restriction on what public and
            private facial recognition systems are being used.
            (2)  Aside from variability and disparity in accuracy across
            algorithms, law enforcement use of facial recognition to
            identify criminal suspects raises special accuracy concerns
            because it is particularly likely that less than ideal images
            will be used in such procedures.

        Studies of facial recognition that find low error rates do
    so only when using cooperative staged images. Declines in
    accuracy are consistently seen when using images not captured
    under ideal circumstances, precisely the types of images that
    are used in criminal investigations.
        Finally, none of this might give rise to a need for
    legislative intervention if the criminal legal system already
    possessed adequate means to police investigative use of facial
    recognition. It does not.
        Partly, this is due to the fact that as long as facial
    recognition matches are used as investigative tools and not
    relied on as evidence in a criminal case, there's little
    opportunity for a defendant who is identified to challenge that
    practice in court.
        Additionally, however, restricted discovery, the sharing of
    case information between the prosecution and defense, means
    that defendants are severely hobbled in litigating law
    enforcement use of facial recognition.
        In contrast to the regime in an increasing number of
    States, defendants in Federal criminal cases do not have access
    to the government's investigative file. Indeed, defendants
    might not even learn that an early facial recognition match
    procedure was performed.
        Moreover, the trial-based timing of disclosure in Federal
    criminal cases means little opportunity exists for the defense
    to vet the reliability of government evidence before entering a
    plea.
        Additionally, to date, defense claims that they are
    constitutionally entitled to information about facial
    recognition under the holding of the case Brady v. Maryland
    have gained little or no traction in courts.
        In sum, facial recognition is an alluring forensic tool
    with potential to accurately open otherwise unavailable
    investigative avenues. Troublingly, the Federal criminal legal
    system is not well-designed to smoke out questionable uses of
    the technology.
        I look forward to your questions.
        [The statement of Ms. Laurin follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Ms. Jackson Lee. Thank you very much, Professor, for your
    testimony.
        Now, I recognize Mr. Brett Tolman for five minutes. Mr.
    Tolman, you are recognized. Thank you.

                       STATEMENT OF BRETT TOLMAN

        Mr. Tolman. Thank you, Chair Jackson Lee, Ranking Member
    Biggs, and Members of the Subcommittee. Thanks for the
    opportunity to testify today.
        My name is Brett Tolman. I'm the Executive Director of
    Right on Crime, a conservative organization dedicated to the
    promotion of criminal justice policies that promote public
    safety, individual liberty, and whole communities. I've
    previously served as United States Attorney, as a Federal
    prosecutor, and as chief counsel for crime and terrorism for
    the United States Senate Judiciary Committee.
        The first issue to address is concerning lack of
    transparency and basic information relating to law
    enforcement's use of facial recognition technology. Many of the
    fundamental questions that you likely want and deserve answers
    to, are currently unanswerable, questions, simple questions,
    such as how many law enforcement entities use facial
    recognition? How often do they use it? Who is in their
    databases and why?
        Beyond those Federal law enforcement agencies, one might
    suspect of using facial recognition, like the FBI, there are a
    host of others with less apparent need who also use the
    technology. For example, the U.S. Fish and Wildlife Service and
    the Internal Revenue Service.
        Also, discomforting are the sources of the photos
    supporting this technology. For example, the government
    utilizes millions of photos of law-abiding individuals
    collected from driver's licenses and passports; but private
    technology companies that contract with law enforcement have
    harvested billions of photos posted by unsuspecting users on
    platforms such as Facebook, YouTube, and even Venmo. This
    collection is an unprecedented invasion of privacy that places
    enormous undue control in the hands of the government and Big
    Tech, two entities not always known for their light touch or
    responsible use of power.
        Walking out the door in the morning can be an exercise in
    skipping from one camera to another. To this perpetual passive
    surveillance, law enforcement can potentially add recordings
    from body worn cameras and the Smartphone in an officer's
    pocket.
        In short, there are very few instances where law
    enforcement will not have the opportunity to subject a person
    of interest to facial recognition technology.
        Inevitably, the first temptation will be, and has been, to
    use facial recognition by default rather than necessity.
    Instead of limiting the practice to serious public safety risks
    or only after due process has been afforded an individual,
    officers may use and have already used the practice for run-of-
    the-mill interactions in minor cases.
        Our Founding Fathers deliberately and prudently enshrined
    in the Bill of Rights prescriptions on the wanton search of
    Americans as a necessary bulwark for freedom. It is hard to
    square those notions and protections with the unfettered use of
    a technology that can instantaneously reveal an individual's
    identity as well as potentially their association and prior
    movements. The unrestricted use of facial recognition bears
    little difference to allowing police to collect fingerprints or
    DNA from anyone and everyone they come across, an abuse that we
    clearly do not and should not tolerate.
        Furthermore, we cannot ignore the risk that facial
    recognition technology will be used to target certain
    Americans. Facial recognition can instantly strip away the
    anonymity of crowds and ultimately threaten our constitutional
    rights of assembly and association. Consider the chilling
    effect facial recognition could have if used to identify
    individuals at a political rally or a government protest.
        This practice grossly lacks accountability. Right now, we
    have little more than vague assurances that we should trust the
    government to safely use the incredible power of facial
    recognition technology without such information or oversight.
        Not long ago, I was tasked with leading the effort in the
    United States Senate to reauthorize the PATRIOT Act. We heard
    similar assurances years ago by those leading the Department of
    Justice and the FBI about FISA and those surveillance
    authorities not being turned against honest Americans. We have
    seen how that worked out as outlined in the recent and
    disturbing Inspector General reports. None of this is to say
    that law enforcement should never have access to facial
    recognition technology.
        While China's unconscionable use of facial recognition
    technology to enhanced and accelerated its undemocratic control
    of its citizenry is a warning of the cost of failure, I do not
    believe it is an inevitable consequence of any use of facial
    recognition technology by law enforcement.
        Further, it is unrealistic to expect law enforcement
    officials to permanently deny themselves a tool that is
    increasingly prevalent in the commercial sector and which has
    such powerful capacity to improve public safety. It is easy to
    contrive a scenario in which we would very much want law
    enforcement to have this technology, searching for a known
    terrorist loose in our city presenting an eminent risk to the
    public, or seeking to identify a mass murder suspect, for
    example.
        However, acknowledging there are credible uses for facial
    recognition technology and voicing support for law enforcement
    is not the same as writing a blank check for power and then
    looking the other way. If nothing else, we need a reset in
    which law enforcement agencies must gain affirmative permission
    from relevant, democratically elected representatives to use
    this technology prior to its use. That way transparency,
    accountability, and proper use guidelines can be established.
        I look forward to answering your questions.
        [The statement of Mr. Tolman follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Ms. Jackson Lee. Mr. Tolman, we thank you for your
    testimony.
        It's now my pleasure and privilege to recognize Dr. Cedric
    Alexander for five minutes.
        Dr. Alexander, you are recognized.

                    STATEMENT OF CEDRIC L. ALEXANDER

        Dr. Alexander. Thank you, and good morning, Madam Chair,
    and those who are Ranking Members and Subcommittee Members, for
    the opportunity to be here with you. I hail from the great
    State of Florida, Pensacola more specifically, so it's great
    being here with you.
        I'm going to try not to be redundant, because maybe some of
    what I'm going to say has already been mentioned in the time
    that has been allocated; but let me start by saying this: On
    July 9, Portland, Maine Press Herald reported on two newly
    enacted acts, laws that make Maine the first U.S. State to
    enact a broad ban on government use of facial recognition
    technology.
        In Maine, State, county, and municipal governments will not
    be allowed to use any sort of FRT. Law enforcement may use the
    technology for investigating certain serious crimes, but State
    law enforcement agencies are barred from implementing their own
    FRT systems. They may request FRT searches from the FBI and the
    State Bureau of Motor Vehicles in certain cases.
        A year earlier, in August of 2020, the Portland City
    Council totally banned the use of facial recognition by the
    police. Indeed, currently there are approximately 24 American
    cities that ban police FRT use, and many other organizations
    has called for a nationwide ban because of evidence that false
    positive identification in the case of people of color exceed
    the rate of Whites. So, the Federal Government has enacted no
    law on how law enforcement may or may not use facial
    recognition technology.
        The benefits of facial recognition systems for policings
    are quite evident. Some have already been mentioned here. It
    is, in fact, that technology that does aid in the detection and
    prevention in crime. For an example, facial recognition is
    effectively used for issuing identity documents and is usually
    combined with long-accepted biometric technologies, such as
    fingerprints and iris scans.
        FRT face matching is used at border checks to compare the
    portrait of digitized biometric passports, and FRT, as we all
    know, was used to identify suspects in the January 6 violent
    breach of the U.S. Capitol, and high-definition digital
    photograph and video-graphy, sometimes deployed from aerial
    drones may be used increasingly to identify faces in mass
    events.
        Currently, the FBI's a leading law enforcement agency that
    uses FRT, and it has developed technology and best practices to
    promote the intelligent use of technology to reduce error and
    protect constitutional rights.
        In addition, the Facial Identification Scientific Working
    Group operating under the National Institute of Standards and
    Technology Organization of Scientific Area Committees is
    working to develop standards for facial recognition technology.
    Facial recognition technology has been useful and law
    enforcement, I believe, will continue to develop technically
    and, therefore, become even more useful. Blanket bans on FRT in
    policings are unwarranted and deny to police agencies a tool
    that is important to aid in public safety.
        Make no mistake, there are urgent constitutional issues
    relating to privacy protection from unreasonable searches, due
    process, and the presumption of innocence. Especially
    concerning are false positives and negative identification
    results.
        In addition, police do not always use FRT correctly. For
    instance, on May 16, 2019, The Washington Post reported that
    some agencies use altered photos, forensic art sketches, and
    even celebrity look-alikes for facial recognition searches. In
    one case, the Post's Drew Hall wrote, ``New York police
    detectives believed a suspect looked like the actor Woody
    Harrelson.'' So, they ran the actor's image through a search
    and then arrested a man that system had suggested might be a
    match. Forgive me for being blunt, but that was pretty, pretty
    egregious, quite frankly.
        Using artificial technology to confer upon a highly
    subjective visual impression, a halo of digital certainty is
    neither fact-based, prudent, efficient, or just. Under Federal
    law, at least it is not illegal for the simple reason that no
    Federal laws govern the use of facial recognition.
        I'm going to stop here and be more than glad to answer any
    questions that you may have, particularly from a very practical
    perspective as being a former chief in two major cities in this
    country, and a former Federal security director for the U.S.
    Department of Homeland Security in Dallas, Texas, for 5.5
    years. So, I understand the importance of this technology, but
    I also understand how it could be easily abused if those are
    not properly trained, certified in the utilization and best
    practices are not evident.
        So, thank you, Madam Chair.
        [The statement of Dr. Alexander follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Ms. Jackson Lee. Dr. Alexander, thank you and thank you to
    all the Witnesses. We obviously have opened up in the parochial
    and often used term, nonlegal, a can of worms that we need to
    certainly address.
        We will now be able to proceed with Members questions, and
    I'm very grateful for the attendance to all you Members, both
    on the minority side, and as well on the majority.
        We will now proceed under the five-minute rule with
    questions.
        I will now begin by recognizing myself for five minutes.
        Director Goodwin, you obviously know of the report, the GAO
    report of 2019, indicating that facial recognition algorithms
    tested accuracy in a real way by race, ethnicity, or country of
    origin, as well as gender, and it differed in accuracy.
        What are some of the concerns related to facial recognition
    system accuracy, Director?
        Dr. Goodwin. Thank you for that, Madam Chair.
        So, a number of concerns have been raised around the report
    around accuracy, and I will just focus on the main one. So,
    just in terms of if you think about a person's face, it's
    distinct; it typically doesn't change. If a person's face is--
    that information is breached or hacked, that is totally
    different than your password being breached. Well, you can
    change your password, but you cannot change your face.
        So, in the report, we note this particular concern. The
    misidentification based on a facial image is of great concern,
    and we note that in our report.
        Ms. Jackson Lee. Thank you very much.
        Mr. Williams, you were wrongfully arrested in front of your
    wife and daughters, detained for 30 hours in a filthy,
    overcrowded detention center because of facial recognition.
    Your story is stunning, in particular holding up a picture
    alongside of your face, your good comment, ``Do we all look
    alike?'' You are a suspect allegedly in a theft investigation.
    Prosecutors dropped the charges, and the Detroit Police Chief
    apologized for sloppy detective work.
        Tell us, what impact did your arrest and detention have on
    you and your family? You are obviously a gentleman with
    employment, a family. How did that impact you?
        Mr. Williams. Ah, well, thank you. Well, the first thing
    when I came home was on the drive home, my wife was saying how
    she had to figure out how to get in contact with the detention
    center because they kept hanging up on her and telling her they
    can't answer any questions because they don't have any
    information. All they know is that I am there, and that is all
    they can tell her.
        When I got home, I asked my wife what was going on, and my
    daughter had took family pictures of us and turned them around
    because she said she couldn't bear to look at me while I was in
    jail, and I had to go talk to a five-year old at the time about
    a mistake that had been made by the police, and she--it was
    hard to make her understand that sometimes they make mistakes
    because you tell her as a child that the police are your
    friend, and if you ever get in trouble, this is who you go to
    and this was going to help. I had to deal with that, and we
    have thought about even taking her to a psychiatrist, because
    when we replay the video from what happened, she can't stand to
    watch it. She gets all emotional, and it's understandable. I
    have to go through that, I mean--
        Ms. Jackson Lee. Painful. Thank you so very much.
        Mr. Williams. Yeah.
        Ms. Jackson Lee. Thank you so very much.
        Professor Friedman, you have heard that story. My time is
    short, and I have one or two other questions.
        What are the privacy implications and risk to communities
    if a private company has access to the details of law
    enforcement investigations? You might add your thought about a
    legislative fix or thought about how we address this question.
        Professor Friedman?
        Mr. Friedman. Thank you, Chair. That was an incredibly
    moving story. I have kids, and I can only imagine.
        The problem, as I think Dr. Alexander pointed out, is that
    the use of this technology is a bit like the wild west. There's
    no regulation. When there's no regulation, we are going to have
    mistakes, and we are going to have breaches, and we are going
    to have all kinds of trouble. There are uses of the technology
    for law enforcement, but you need a full set of regulations.
        I've set out a bunch of them in my testimony. I think you
    could do a lot of this by regulating the vendors directly. As a
    product moving in interstate commerce, you could set a number
    of standards, including that the companies themselves have to
    regulate and identify what are effective probe images, what are
    the right size of the databases, what are the thresholds to
    avoid false positives and false negatives under different
    circumstances, that the technology is self-auditing so that we
    could know what how it was actually used by law enforcement.
    So, there's a lot of things that can be done.
        Ms. Jackson Lee. Thank you very much.
        Just, Dr. Alexander, what are your suggestions on how law
    enforcement authorities can reduce the phraseology that the
    Detroit chief had to acknowledge, sloppy detective work,
    without greatly reducing investigative efficacy?
        Dr. Alexander?
        Dr. Alexander. Thank you, Madam Chair.
        I guess having been a former chief and I had to respond in
    that way, that would certainly suggest to me that I have a
    larger systemic issue around the way investigations are
    conducted, and how people are interviewed.
        Here's the issue, though, for me. The technology is one in
    which we use every day. We pick up our cell phone. We use it to
    access calls or text messages, whatever the case may happen to
    be. The biggest issue here for me, and will continue to be,
    when you have victims such as Mr. Robert Williams, people who
    are innocently going along their way, because of a failed
    ability for us in policing, quite frankly--and I say ``we''
    because I have been there--the inability to train people
    appropriately. They have to be trained. There has to be
    certifications. There has to be best practices, and there needs
    to be certification both, I believe, certainly at a State
    level, and a Federal level, that has to be ongoing, because one
    thing that we know currently is that we don't train enough.
        When you are utilizing that type of technology that can
    easily infringe upon someone's Fourth Amendment rights, I think
    we have to be very careful. We also have to remember where we
    came from, even in DNA technology, where we there, too, have
    seen over the years, particularly in the past, we have seen DNA
    labs that were shut down because of people's inability to carry
    out that professional function based on certification and
    accuracy. We don't want to find ourselves using this technology
    doing the same things that we have done in the past, because
    what it will continue to do, Congresswoman, is drive that
    proverbial wedge even further apart between good policing and
    communities across this country, and I don't think that is a
    road we want to continue to go around--to go down.
        Ms. Jackson Lee. Thank you so very much.
        My time has expired. I know that there are many other
    questions that I have interest in, but let me yield to the
    Ranking Member of the Subcommittee, Mr. Biggs, for five
    minutes.
        Mr. Biggs. Thank you, Madam Chair.
        Dr. Goodwin, thank you for being here today.
        In your most recent report, you found that 13 of the 14
    agencies that you surveyed that reported using non-Federal
    systems did not have complete, up-to-date information about
    what systems their employees were even using.
        Is that a correct interpretation?
        Dr. Goodwin. Yes, that's correct, sir.
        Mr. Biggs. So, in fact, if I understand right, even one of
    the agencies you worked with had to poll its employees to see
    whether they were using the system, and what systems they were
    using. Is that accurate, too?
        Dr. Goodwin. That's correct, Congressman.
        Then one of the agencies polled, yes, they initially told
    us that they didn't use the technology. When they polled their
    employees, they found that the technology had been used in over
    1,000 searches.
        Mr. Biggs. Well, if agency leadership does not even know
    what systems their employees are using, or whether they are
    using it, how can they be sure that those systems are not being
    misused, and that our constitutional rights of American
    citizens are not being violated?
        Dr. Goodwin. So, this speaks to the heart of the
    recommendations that we made, that agencies have an awareness.
    It's important that they have an awareness of what systems they
    are using, particularly the non-Federal systems that their
    employees are using. Given that awareness, then they can then
    begin to ensure that the appropriate protections are in place
    related to privacy and accuracy.
        Mr. Biggs. Ms. Frederick, we know Federal agencies are
    using private searches, and they are collecting literally
    billions of images. How are those images acquired?
        Ms. Frederick. Well, it depends on the private company. A
    lot of these companies--Clearview AI was mentioned earlier--
    they claim to scrape the Internet, social media sites, things
    you might upload, what your grandma is still using Flickr to
    upload. There's an IBM scandal there as well. So, they are
    basically just scraping what is publicly available on the
    internet when people are unwittingly uploading these photos,
    clicking yes to some of the terms of use on these private
    companies. They are not consenting to allow these images to be
    used by law enforcement; but by using those non-Federal private
    companies, these contractors like Clearview AI, like Babel
    Street has been mentioned, they are just using your regular
    photos from your grandma, family, sisters, and your daughters.
    So, it is pretty much a government-infused wild west out there.
        Mr. Biggs. Mr. Tolman, these systems, these private
    systems--let's leave off Federal systems for a moment, or law
    enforcement systems--what steps are they even taking to secure
    their systems?
        Mr. Tolman. Well, the reality is they are more interested
    in the dollars that are behind this technology than they are
    securing civil liberties, and that will always be the case.
    When private companies are contracting and utilizing a powerful
    technology, their interest is going to be driven by their
    bottom line.
        Mr. Biggs. So, Mr. Tolman, back to you still, these
    agencies, like Federal agencies that are using private
    services, is it just easier for them to contract out than to
    develop their own system, I assume?
        Mr. Tolman. Yes. The capability is hundreds of millions of
    photos versus what they would be able to gather themselves with
    limited staff and resources.
        Mr. Biggs. So, how are we going to ensure that Americans
    are not being targeted by Federal agencies using the facial
    recognition technology? What are your policy prescriptions?
        Mr. Tolman. So, there certainly is--as others have said,
    there's going to have to be a complete shift, meaning the
    legislature is going to have to enact regulations that require
    any agency, government agency, whether they are contracting or
    not with Big Tech or other companies, are going to have to have
    policy that allow for the proper use, the legal use of this,
    ones in which you all say is a legal use.
        I prosecuted the kidnapper of Elizabeth Smart. I can
    imagine during that case, when I was a prosecutor, we would
    have clearly sought out law enforcement's ability to use that
    to identify Elizabeth and try to find her. That is a far cry
    than just downloading all from social media what you can and
    then targeting others without the legal justification or the
    regs or policies that have been approved by Congress.
        Mr. Biggs. Mr. Lee, I'm going to ask you the same question.
    What prescriptions, policy prescriptions do you advocate that
    we can ensure that Americans are not being targeted by Federal
    agencies or other law enforcement agencies?
        Mr. Lee. Ranking Member Biggs, thank you for the question.
        The Leadership Conference supports a ban, or moratorium, on
    the use of these technologies. We support a ban or moratorium
    because:

            (1)  These communities are already--the communities where
            facial recognition technology is used are already over-policed
            and over-surveilled.
            (2)  Facial recognition technology is disproportionately
            inaccurate for Black and Brown communities, particularly,
            communities of color.
            (3)  The community has not been involved in these processes.
            Congress has not engaged in legislation on these topics.
            Communities have not been involved in highlighting what they
            think policing should be, specifically within the context of
            facial recognition technology.

        Mr. Biggs. Thank you.
        My time is up, Madam Chair. Thank you.
        Ms. Jackson Lee. Thank you very much.
        Now, I'm pleased to recognize Mr. Nadler, Chair of the
    Committee.
        Mr. Nadler, you are recognized.
        Chair Nadler. Thank you, Madam Chair.
        Director Goodwin, I would like to focus on the FBI's use of
    facial recognition technology. In your report, you found that
    15 agencies reported using systems owned by another Federal
    entity, and 14 reported using systems owned by State, local,
    Tribal, or territorial entities, including the FBI.
        Can you briefly describe for us how the FBI uses State
    systems to expand its facial recognition search capacity?
        Dr. Goodwin. Thank you, sir, for that question.
        So, I will briefly talk about how the FBI used the
    technology around the events following the killing of George
    Floyd in May 2020.\1\ So, the FBI has a media tip line, as I'm
    sure you are aware of, and so what they did, they asked for
    people to submit images to the media tip line. The images that
    were submitted to the tip line they then inserted into an FRT
    system to try to get some potential matches.
    ---------------------------------------------------------------------------
        \1\ Director Goodwin requested to update this sentence. The
    original statement was ``So, I will briefly talk about how the FBI used
    the technology around the events of January 6.''
    ---------------------------------------------------------------------------
        So, that is one way the FBI has used the technology.
        We did a report a few years ago on FBI specific use of the
    technology, and we had issued a number of recommendations that
    spoke to them complying with the Privacy Impact Assessment,
    otherwise known as PIA, and the Systems of Record Notice,
    otherwise known as the SORN. The FBI--ultimately, they agreed
    with our recommendations, and they implemented the
    recommendations. So, they have--I think it was Dr. Alexander
    who mentioned that the FBI has done a number of things to
    ensure that the accuracy of the FRT systems that they are using
    has improved.
        Chair Nadler. Thank you.
        Also, Director Goodwin, your report describes how agencies
    use nongovernment-owned systems. What are the potential
    security risks associated with a Federal law enforcement agency
    using a non-Federal Government-owned, or, even a State- or
    local government-owned FRT system?
        Dr. Goodwin. So, I will focus on the non-Federal systems,
    and it's something that we speak to in the report. As I
    mentioned earlier, the Privacy Impact Assessments and the
    Systems of Record Notice, the PIA and the SORN, those are two
    standards that typically, if a government agency is using their
    own system, they have to follow. So, the concern that we
    mentioned in our report is that if they are using a non-Federal
    entity for facial recognition technology, that entity, that
    non-Federal entity may or may not have to comply with the
    recommendations and the guidelines laid out under the PIA and
    the SORN, and, so, that is a concern. So, with the PIA, that,
    of course, speaks to how the images are being used. The SORN
    speaks to the fact that if there's a change in the technology,
    that information has to be made public and available.
        Chair Nadler. Thank you.
        Professor Laurin, for those who are arrested following law
    enforcement officers' use of facial recognition technology to
    match them to a suspect's photo, what protections are in place
    for defendants, who are presumed innocent at that point, to
    challenge the use of the facial recognition technology that led
    to their arrest?
        Ms. Laurin. Well, in many instances today, it's quite
    limited, the opportunity to do that. In fact, practically
    nonexistent to the extent that the practice has been for law
    enforcement agencies to use the facial recognition match as a
    lead that then is corroborated through other evidence. The
    risk, though, is that that corroboration ends up not truly
    being independent corroboration.
        So, for example, in a case in Florida, a facial recognition
    match was made based on an image in a store, and subsequently a
    police officer who knew that the match had been made, looks at
    the image himself and said, yeah, these two guys look alike.
    So, already knowing that the computer had assisted a match sort
    of doubled down on it, which is not an independent
    corroboration.
        What courts have said is that defendants really don't have
    the right to challenge the facial recognition match when the
    government isn't relying on it in court; but that misses the
    fact that the match could taint what is showing up in court.
        Chair Nadler. Thank you.
        Facial recognition systems have been found to be less
    effective in detecting people of color and women. As we heard
    from Mr. Williams, he experienced this technological flaw in
    real time when he was misidentified despite his photo not
    resembling the suspect.
        Professor Friedman and Mr. Lee, can facial recognition
    technology be incorporated fairly into criminal investigative
    and public safety strategies despite this inherent flaw in the
    algorithms?
        Professor Friedman?
        Mr. Friedman. Go ahead.
        Mr. Lee. First, Chair, it's a pleasure to see you again,
    especially under these circumstances. Secondly, the Leadership
    Conference does not. Currently the issues of accuracy alone
    would say that--would hold that a ban or moratorium would be
    the most appropriate use. In addition, these technologies are
    being used in communities that are already over-policed and
    over-surveilled. So, there is no way to get around the accuracy
    and over surveillance issues that come with law enforcement use
    of facial recognition technology.
        Chair Nadler. Mr. Friedman?
        Mr. Friedman. Chair, so I want to echo the grave concern
    about technologies that have these demographic differentials,
    as I said in the past, that they ought not be used unless that
    can be addressed. Actually, join Mr. Tolman in thinking
    strongly that we shouldn't be using the technologies until
    there's regulation. There may be ways to deal with the
    demographic disparities if we understand what they actually
    are, but we don't have that testing, so we have learning to do.
    Then, we have to think about what it means to have a human in
    the loop because many people offer that up as a way to ensure
    that these things don't go wrong. As Mr. Williams' story all
    too graphically demonstrates, the way we use humans in the loop
    right now don't do that. It might be possible to develop
    protocols and best practices to do that; but we have not made
    that happen yet, and that is why we suggest that we need
    regulation.
        Chair Nadler. Thank you.
        Madam Chair, before I yield back, I ask unanimous consent
    to place the following into the record: A statement from over
    40 civil rights groups, a letter from the Security Industry
    Association, and individual statements from Data for Black
    Lives, the Electronic Frontier Foundation, and the Project on
    Government Oversight.
        Ms. Jackson Lee. Without objection, so ordered.
        [The information follows:]

                          CHAIR NADLER FOR THE RECORD

    =======================================================================

    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Chair Nadler. Thank you.
        I yield back.
        Ms. Jackson Lee. Thank you very much.
        Mr. Chabot, you are recognized for five minutes.
        Mr. Chabot. Thank you, Madam Chair.
        I would like to lead off by thanking our Ranking Member,
    Mr. Jordan, for allowing me to go in front of him. I have a
    noon speech that I am supposed to give in my district. It's
    going to take me awhile to get there, so I really do appreciate
    him switching spots with me.
        In addition to being a Senior Member of the Judiciary
    Committee for quite a few years, I also serve on the Foreign
    Affairs Committee, and I'm the Ranking Member and past Chair of
    the Asia and Pacific Subcommittee, and in that capacity, we,
    both Republicans and Democrats, on the Committee have been very
    closely watching, observing, monitoring what the PRC and the
    Chinese Communist Party is up to there, and the threat that
    they pose, not only to Americans, but to their own citizens.
        It's well known, as was mentioned earlier in the statement
    of one or two of the Witnesses, that the Chinese Communist
    Party uses a vast civilian surveillance network to track nearly
    every movement of every single person there, and there's 1.4
    billion people who they are tracking.
        So, it's a pretty extensive effort that they have
    undertaken. For example, they force their citizens to download
    apps that monitor them. They track social media posts to look
    for what they consider to be negative content. They stop people
    at random to check their devices for apps deemed to be
    dangerous to the state, and they use facial recognition
    technology, technology similar to what we are discussing here
    today, to pick individuals up that they are looking for in
    crowds.
        All of this is to build a so-called great firewall between
    China and the rest of the world, so they can keep their people
    under control, and to gather personal data on their citizens
    which can be used to flag and potentially torment the people of
    China, individuals they believe that are going to be unhelpful
    to the regime.
        So, I would like to ask Ms. Frederick and Mr. Tolman, would
    you care to comment on the assessment you see relative to
    China, their use of facial recognition, other technologies, to
    monitor their citizens and how the CCP is using facial
    recognition technology to oppress individuals and certainly
    various groups. The Uyghur community comes to mind because they
    have obviously been in the news, not nearly enough of late when
    you consider that a million people are in their gulags.
        Are there any lessons that we should learn from this? I'm
    not, by any stretch of the imagination, suggesting that our
    government has anything like this in mind; but I would like to
    hear from those two, if we could.
        Ms. Frederick. Certainly. Thank you for the question. I
    will begin, if you don't mind, Mr. Tolman.
        So, we should say yes, we have a system in the United
    States here that matters, sufficient rule-of-law protections,
    openness and engaged citizenry, a free press, and an
    independent judiciary that Act as guardrails for now against
    the propagation of technology for political ends that are
    anywhere near like China.
        It is important to look to them. As I said before, they are
    the bleeding edge of using these technologies for internal
    control and internal stability. They pervade a path for ethnic
    targeting in the western region of Xinjiang as we talked about,
    where 1.5 million Uyghurs are imprisoned in reeducation camps
    often through the use of these facial recognition systems.
        It's not just about facial recognition alone. I think the
    ability to integrate seemingly disparate data sets as they do
    in Xinjiang, they use something that Human Rights Watch has
    reverse-engineered. It's called the Integrated Joint Operations
    Platform, and what they do is they take all this data, they
    fuse it. It's license plate readers, data doors, these things
    that pick-up SIM cards, and all kinds of biometrics, iris
    scans, just all the digital exhausts that we are constantly
    emitting that people, even in these regions, are constantly
    emitting. They put them altogether, and they use this
    information. They use new technology, artificial intelligence--
    this is one of the first places that they started using it--for
    political identification of dissidents, of Uyghur minorities.
        What I see coming down the pike is the use of DNA
    genotyping. China is already trying to do this. They are trying
    to use an individual's DNA to predict what their faces will
    look like. They are experimenting with voice recognition
    technologies, and the idea is to combine all this into this
    digital panopticon and use it for basically an iron hand of
    digital control. We have the technology right now to do so.
        They have visited some of this in Hong Kong, as we have
    seen the diminishing of freedoms there, how does the democracy
    die in full view of us, and China is using technology to enact
    it. We know that Russia is doing the same things when it comes
    to pro-Navalny protests in January of this year. So, all these
    things are something to keep in mind. As Paul Mozur from The
    New York Times said, which I think is something that I would
    leave you with, ``what China is trying to do is totalized
    control.'' They are trying to link digital reality with
    physical reality, and that chasm that used to exist is growing
    closer and closer and closer together. China wants them to be
    completely interconnected. We have to guard against that here
    in America.
        Mr. Chabot. Thank you.
        Madam Chair, my time is expired. Perhaps Mr. Tolman could
    respond in writing just so we don't hold the Committee up at
    this time.
        Ms. Jackson Lee. Thank you very much, Mr. Chabot, for
    yielding back.
        I now recognize the gentlelady from California, Ms. Bass,
    for five minutes.
        Ms. Bass. Thank you, Madam Chair, and let me thank the
    Ranking Member and our Witnesses for being with us today.
        I wanted to know if the Witnesses--and anyone could speak--
    could distinguish between using facial recognition to
    investigate versus facial recognition for arrest. Is it more
    productive to use it that way versus all the complications for
    arrest?
        Also, it's very well-known, and it has been said by
    numerous panelists and Members, of the challenges of facial
    recognition with people of color, but I'm not sure, unless I
    missed it, if anybody said, ``Does it work better if it's White
    men?'' How does it perform?
        Dr. Alexander, would you like to go?
        Dr. Alexander. Well, I will try to respond, to the first
    part of your question, whether the technology should be
    utilized with the idea of making an arrest based on the
    identification itself, can it be used as an investigative tool?
        When I think about it as an investigative tool, if that
    person's image happened to be a match, or similar match and we
    are working with zero leads in a case, it may prove to be of
    some value, right? The thing we have to be very careful--and I
    think someone mentioned it earlier and articulated it far
    better than I can--that we have to make sure we cognitively
    don't approach that individual already with our implicit biases
    in mind that they are the exact person we are looking for. Do
    you follow what I'm saying, Congresswoman? So, I think we have
    to be very, very careful with that.
        Ideally, to be perfectly honest with you, I was here two
    years ago under the leadership of another hearing with the late
    Congressman Elijah Cummings having these same conversations,
    and I recollect very clearly there was a woman there who was a
    professor, researcher at MIT who spoke very eloquently around
    these issues and was able to provide some insight in terms of
    the depth of this technology and how it does not work to the
    advantage of people of color and women.
        There's an overwhelming amount of evidence--and I think
    there are those on this panel who can talk further about this--
    where, in the case of White males, there was the least likely
    opportunity for misidentification. Certainly, those of color
    and women, they tend to be more problematic.
        Ms. Bass. You said least likely, meaning that it's more
    accurate with White men?
        Dr. Alexander. Yes. It's more accurate with White men. I'm
    sorry, yes.
        Ms. Bass. Maybe someone else could respond to that. I don't
    know whether it's Mr. Friedman or Ms. Goodwin. What about that
    in terms of the accuracy and its use as an investigative tool?
    In the George Floyd Justice in Policing Act, we essentially say
    there should not be Federal resources in facial recognition.
        Mr. Williams, you have your hand raised.
        Mr. Williams. I was just going to say about the question
    you had previously asked that it was supposed to be used for an
    investigative tool at that point, and they came and arrested me
    and didn't even tell me anything. I don't even live in Detroit,
    and Detroit police came to my house in Farmington Hills, and
    basically carted me off. Right. So, I don't have a lot to say
    about that. All I'm saying is that the way that it's used, they
    are not doing any due diligence at all. That, like the chief
    said, was shoddy investigative work done and--
        Ms. Bass. Actually, excuse me, Mr. Williams, to me you are
    an example of what I wasn't saying. I
        Mr. Williams. I was talking about when you asked the
    question.
        Ms. Bass. Right. They used it for your arrest--
        Mr. Williams. Right.
        Ms. Bass. --which I think it's clear is problematic; but I
    was referring to use it to investigate, not in real time for an
    arrest.
        Mr. Friedman, do you have anything you want to say in the
    last few seconds?
        Mr. Friedman. Sure. I think there are things that this body
    could do regulatorily, and then there are things that it could
    learn and try to get us to learn. One of the problems we have
    is that NIST has not tested the kinds of uses that law
    enforcement is using. What we need--and I'm happy to elaborate,
    but I don't want to go over time--is the kind of testing that
    actually reflects what's happening in law enforcement news
    rather than a set of abstract possibilities for the accuracy
    and bias.
        Ms. Bass. Thank you, Madam Chair.
        Ms. Jackson Lee. Thank you so very much.
        Mr. Ranking Member, I'm not going to take up your time, but
    I am just moved to say that it appears like unreasonable search
    and seizure under the Fourth Amendment. I will not take up your
    time, and I'm delighted to recognize Mr. Jordan for five
    minutes.
        Mr. Jordan. Thank you, Madam Chair.
        Let me go over to Mr. Tolman. How often does it happen, how
    often do we get the wrong person? Where Mr. Williams told his
    compelling story of how they were just wrong and he was
    arrested and detained, I think he said for 30 hours--I know the
    Hueper family, the recent story of the couple in Alaska who
    were not in the Capitol on January 6, but their door was kicked
    in. They were put in handcuffs. They were at gunpoint at one
    point during the interrogation. It was like a four-hour
    interrogation, and it was all based on facial recognition. So,
    how often do we get the wrong person?
        Mr. Tolman. Well, one time would be too many, but
    certainly, some estimate it as high as 30 percent, but I
    actually believe it's more than that, Representative Jordan.
    It's nice to see you again, sir.
        Mr. Jordan. You too.
        Mr. Tolman. It is, I believe, higher than that. I have
    represented two individuals, one of whom I'm fairly certain--
    and it's not--we don't know about the ones that aren't
    publicized or the ones that aren't coming forward. I have a
    client who was accused of going inside of the Capitol. He was
    not in the Capitol. I believe it was facial recognition
    technology that put him in law enforcement's investigation, and
    we certainly had to work backwards to show that he was not.
        So, I think it's more often than we know because it's not
    being reported.
        Mr. Jordan. Mr. Lee, do you know? Is there any kind of--Mr.
    Tolman said 30 percent. Is that--and we know it's a
    disproportionate impact on African Americans. Do you think it's
    a higher number than that, or is that probably where that 30
    percent of the time this technology gets the wrong person?
        Mr. Lee. Ranking Member Jordan, thank you for the question.
        We don't know, and that's a part of the problem. These
    technologies lack the requisite transparency and the requisite
    oversight for us to even know. Of the cases like Mr. Williams'
    that we do know those are terrifying. What about the cases that
    are maybe on the knife's edge that we don't know about right
    now? So, we do need more transparency and more oversight,
    specifically with facial recognition technology and its use by
    law enforcement.
        Mr. Jordan. Yes, thank you.
        I'm going to yield to our Ranking Member, but I'm
    concerned, in a general sense, that just the overall
    surveillance State and individual Americans' just fundamental
    liberties, fundamental rights, but when you add on top of that
    the fact that it's wrong so often, to me, this is why if we
    can't come together in a bipartisan fashion as I know we have
    been trying now for a couple of years, if we can't do that and
    figure out a way to put restrictions on this, limit this,
    particularly when you have all these agencies using the
    technology, they don't even know which technology they're
    using, and whether it's private or what have you--there's just
    a host of problems here.
        So, I appreciate Chair Jackson Lee having this hearing, and
    I'm going to yield the remaining two minutes to our Ranking
    Member, Mr. Biggs.
        Mr. Biggs. I thank the gentleman for yielding.
        My question at this time is to you, Ms. Frederick.
    Peachtree Corners, Georgia, used AI-driven Smart cameras to
    monitor social distancing, social distancing, and use of
    mastering COVID-19.
        With current technology, what prevents Federal agencies or
    State and local government from using facial recognition not
    just to use it for identification, but to track movement and
    behavior of law-abiding citizens?
        Ms. Frederick. I fear that's what is coming down the pike,
    and right now, there are specific transparency measures and
    lukewarm, I would say, strictures on some of these uses. Ms.
    Goodwin talked very well about the PIA and the SORN, and JO's
    recommendations. Those are great start points, but at this
    point, there are no hard constraints on the expansion of the
    remit for these cameras. So, the public safety remit, it's
    huge. It could encompass all sorts of things, and, clearly,
    certain municipalities are taking advantage of that to
    interpret public safety as they wish.
        So, unless Federal entities are required to really submit
    those efficacy reports, those transparency reports that don't
    yet exist in a very rigorous fashion, then I fear many official
    entities will be allowed to interpret the use of facial
    recognition, interpret the use of digital surveillance in any
    way they can.
        I will say quickly, when I was at Facebook, the ethos of
    private companies in shipping these products--and this is the
    problem with private companies being used by Federal entities
    you want to ship it. You want to ship it. You deploy these
    technologies as fast as you can and solve problems in the
    rollout in later iterations. That ethos is--
        Mr. Biggs. So, Ms. Frederick, thank you for answering that.
    I need to ask one more question because it deals with--and I
    want to talk to Professor Laurin really quick. She had her hand
    raised with regard to the question on investigation versus
    arrest. What has come to my mind is this notion of tainted
    photo lineups, tainted identification being used in
    investigation as predicate for making an arrest.
        Did you want to elaborate on that, Professor Laurin?
        Ms. Laurin. Thank you so much for the opportunity, Mr.
    Ranking Member.
        I will say just a bit more, and that's to say that I do
    think that it's possible in theory to think about a distinction
    in the use of the technology as an investigative tool versus
    forming the basis for an arrest or put differently, a facial
    recognition match by itself forming probable cause, right, to
    arrest.
        I think that from a regulatory standpoint, one needs to
    take great care in thinking about what strictures need to be
    put in place to create a meaningful distinction between those
    two things, right? So, for example, there are a number of
    agencies that currently say facial recognition itself cannot be
    the basis for probable cause. Then there are very few, if any,
    sort of strictures around what further investigation is
    required to build an independent case, right? Are there, for
    example, blinding procedures so that individuals who are then
    doing a subsequent lineup don't know that facial recognition
    initially matched the individual? If not, right, that is not a
    particularly meaningful independent check.
        The last thing I will say is that I think there's an
    important sort of intersection here between facial recognition
    technology, and what we already know about the fallibility of
    eyewitness identification, right, which, in over 75 percent of
    known DNA exonerations, there were now known to be wrong
    eyewitness identification that occurred.
        So, that is an investigative tool that itself is already
    quite fragile, right? When used as a corroborating piece of
    evidence with the fragile facial identification, that should
    give reason for concern as well.
        So, thinking about what strictures need to be in place to
    create a meaningful check on the investigative use of facial
    recognition is an important regulatory move.
        Mr. Biggs. Madam Chair and Ranking Member Jordan, my time
    has long expired. Thank you.
        Ms. Jackson Lee. Thank you very much.
        It is an issue that warrants a lot of involvement, and we
    thank our Members.
        I'm delighted now to recognize Ms. Demings, the gentlelady
    from Florida, who as a fellow Floridian on the panel, for five
    minutes.
        Ms. Demings.
        Ms. Demings. Let me say good morning to all of you. Thank
    you, Madam Chair, and thank you, Ranking Member, for this very
    important discussion. Thank you to all the Witnesses for being
    here. It is good to have a fellow Floridian on the panel as
    well, so thank you very much.
        As a former police executive, I'm always interested in new
    technologies that can help to keep the public safe, help to
    keep law enforcement safe, and improve the delivery of police
    service, and we know that we have work to do in all those
    areas.
        It was a decade ago that we were testing body cameras at
    the Orlando Police Department, and while we weren't really sure
    of the road ahead, I do know that the public was very excited
    about that possibility. Certainly, it is one of the
    recommendations that is coming to the forefront now, and so, we
    should always seek technologies that will enable us to do a
    better job.
        Dr. Alexander, you said that technology has long outpaced
    attempts to govern it, and I think that is such a powerful
    statement, because not only does it appear that the use of
    facial recognition outpaced our ability to govern it, but we
    also see that with other technologies as well.
        Dr. Alexander, you talked about some best practices, until
    we can find ourselves at a point where we can keep up, if that
    will ever happen, through regulation and other things. Could
    you just expand a little bit on some of those best practices?
        Dr. Alexander. Well, I think that--and thank you very much,
    Congresswoman Demings.
        I think it is very important for us to recognize that
    technology does move along very quickly. If we think about the
    development and the implementation of technology over the last
    10, 15, 20 years, or even the last five years, it oftentimes
    outpaces us as human beings. We are not prepared, oftentimes,
    for the unintended consequences that comes with the technology
    that we are all utilizing every day in our lives.
        So, yes, we have to develop best practices. What is some of
    those best practices? I think we can really only clearly define
    them once we make some determination about the real legitimacy
    of this facial recognition technology. Look, it can be
    innocently used with our cell phones just to open it up and
    conduct our personal business. When it comes to the
    constitutional right of American citizens across this country,
    regardless of where they are and what neighborhoods they are
    in, that becomes more problematic. Can we use it as an
    investigative tool? You know as well as I do, Congresswoman,
    oftentimes we might embark upon an investigation where we have
    zero leads, but maybe we have a piece of this facial
    recognition that suggests, could that be Cedric Alexander?
        What we can't do is what happened to Mr. Williams. We can
    look, well, let's look into the background of Cedric Alexander
    a little further. Let's explore some other things that we did
    not even think about, even had a suspect at all, or a person of
    interest. The problem even lies there, as I've already stated,
    is that sometimes, we can identify an individual that may be a
    likely person of interest, a suspect. If our own implicit
    biases get in the way, it will overwhelm the entire
    investigation, and it leads us down this dark path of where now
    we are really doing injury and hurt to people.
        Here's the bigger thing I would mention to all of you in
    Congress, is that as we go through this place in America right
    now around police reform, one thing we do not need is a piece
    of technology that is going to continue to drive a separation
    between police and community. People want good police. We all
    want great technology. The idea around this technology really
    is great. It's well-founded. It has to become more accurate. It
    has to have the type of legitimacy, trust in this technology
    that is needed for the American people to feel like it's not
    going to infringe upon the rights and hurt people in any type
    of way.
        I sit on the National Innocence Project Board, and I
    understand the importance of DNA technology and how it's used
    to free individuals, quite frankly, who should have never been
    incarcerated, like Mr. Williams. We have to do a better job in
    advancing this technology, but understanding that sometimes the
    technology moves along faster than we do as human beings,
    because we still have got a lot of catching up to do around
    many of the social challenges we have in our great Nation.
        So, I hope in some kind of small way that addressed your
    question, Congresswoman.
        Ms. Demings. It did. Thank you so much again. Thank you to
    all our Witnesses.
        With that, I yield back, Madam Chair.
        Ms. Jackson Lee. The gentlelady's time--thank you very
    much--has expired.
        We now recognize Mr. Gohmert for five minutes.
        Mr. Gohmert. Thank you, Madam Chair.
        I've got to say, this really warms my heart, to hear
    Witnesses from both sides having so much good input. It was my
    observation during the Bush years that the Department of
    Justice was able to convince Republicans--many of them, a
    majority of them--``No, we don't need any reform right now,''
    and really push back and convince Republicans that were in
    charge to back off some reforms we should have made.
        I noticed resistance like that. I'm sure a lot of pressure
    from the Obama Administration on Democrats that were in charge
    not to do some reform that was needed.
        So, when I hear the testimony and the questions and hear
    this in such a great, bipartisan way, something that is so
    serious, it really does warm my heart. Some great comments and
    great questions.
        Dr. Alexander, I note you're careful to make sure that you
    note that this technology can be helpful, and then it sends me
    thinking back about our FBI.
        Do you think the technology on recording statements,
    instead of the FBI having their agents not record statements,
    audio, or video, but just write down their version of what the
    Witness, do you think the technology has gone too fast for the
    FBI, that maybe we could get them to start recording with audio
    at least, maybe video? I am being sarcastic.
        That is an area of concern for me. If you combine facial
    recognition mistakes with the FBI's ability to only record,
    only write down what their version of what a Witness says, you
    combine flaws like that, then we are looking at some serious
    problems at the Federal level.
        I am sure your local law enforcement which you oversaw
    recorded statements, so that wouldn't be such a problem.
        Can you see regulations, Dr. Alexander, that would help us
    be able to confine facial recognition just to the investigative
    stage?
        As a former judge, I know sometimes law enforcement will
    come in and they will go, ``Now, Judge, this is in the
    affidavit, but, hey, we did also . . . . Well, if you didn't
    swear to it, I don't want to hear it,'' That discrimination of
    real sworn evidence to unsworn evidence isn't always
    distinguished by some judges.
        Do you see some regulations we could utilize to actually
    get some teeth into that?
        Dr. Alexander. Thank you for that question, Congressman
    Gohmert.
        First, let me say, the FBI has the tendency, has the
    ability, has the training, and also has the fidelity of a
    Federal law enforcement agency, that is, well-trusted in
    everything that they have pursued, particularly around
    technology. They really stood up on technology, if you go back
    a hundred years with them, in terms of the work that they did
    back then, and they do today, forensically.
        They do have great capability of being able to access that
    type of technology and use it in a way that is standardized,
    one in which they have best practices, one in which they really
    are the leaders around the utilization, because they use this
    technology to go after foreign actors who want to do harm to
    this country or to utilize this even in domestic cases.
        Mr. Gohmert. Dr. Alexander, my time is short, but I am very
    concerned about some of their abuses. When we see the FISA
    Court that meets in secret, and then there doesn't seem to be
    any checks.
        Like I say, as a former judge, I'm very offended that some
    judges have not been outraged, like Mr. Williams' treatment and
    others. I think that is a problem when the judiciary is not
    upset enough to actually take action and bring law enforcement
    into line.
        Let me ask, Mr. Tolman, do you see a way to get specific
    regulations that would discern between investigation and
    actually going to court and getting a warrant and picking up
    somebody like Mr. Williams?
        Mr. Tolman. Yeah, I think you could implement things such
    as not allowing for the facial recognition technology to launch
    an investigation, that they would have to have the independent
    basis to launch the investigation. Then, ultimately, if it went
    to trial, you could utilize facial recognition technology as
    additional evidence.
        You can't have it the other way around, because then you
    have concerns about whether the evidence that is corroborating
    the facial recognition technology is simply influenced by the
    subjectivity of the investigators.
        Mr. Gohmert. Well, thank you.
        My time has expired. Thank you very much, Chair Jackson
    Lee. I really appreciate this hearing.
        Ms. Jackson Lee. Thank you so very much, Mr. Gohmert. We're
    more and more finding some common ground. Should be some good
    opportunity for us to move forward.
        I am delighted to recognize now, the gentlelady from
    Georgia for five minutes. Ms. McBath is recognized.
        Ms. McBath. Thank you so much, Chair. I really, really
    appreciate you today.
        Thank you to each and every one of you that is here today,
    and just thank you so much for all your timely resource and
    information, and your expertise.
        I would like to go ahead and just start a really quick
    question.
        Dr. Alexander, looking at how we might regulate facial
    recognition technology, how can we seek to build trust between
    law enforcement and the communities that they serve, especially
    communities of color?
        Dr. Alexander. Well, fundamentally, that's where a lot of
    the issue lies, Congresswoman McBath, because currently in the
    environment that we're in--and this is not new, it's just more
    exacerbated now over the last several years--there is certainly
    a great deal of mistrust between police and community.
        You're already dealing with that in the current context of
    where we are right now in this country, but as we continue to
    introduce new technology and ways of seeing things that are
    questionable, such as facial recognition, if we don't do it
    right and we end up with continued victims like Mr. Williams,
    then we continue to create that separation where legitimacy
    around policing continues to be questioned.
        This is the fight that I find myself fighting every day in
    the roles that I play now, is really trying to build those
    relationships, but it certainly does have its challenges
    associated with them.
        We've got to get the technology right, because if we don't,
    it's not going to help the cause in building those
    relationships. Because if we don't have that collaboration
    between police and community--and I don't care where it is--
    we're going to continue to find ourselves here and continue,
    all of us, to continue to be at risk.
        Ms. McBath. Thank you so much and stay in the fight.
        Dr. Alexander. Yes, ma'am.
        Ms. McBath. Professor Laurin, your testimony, now it said
    the rules of discovery, the sharing of case information between
    the prosecution and the defense are restrictive. So,
    prosecutors don't actually have to mention what facial
    recognition technologies they might have used to investigate,
    and our courts don't get much of an opportunity to advance the
    law by sorting out what are acceptable and unacceptable uses of
    this technology.
        Could different kind of discovery rules help with this kind
    of problem?
        Ms. Laurin. Thank you so much for the question,
    Congresswoman.
        I think the short answer is yes. Just at the risk of going
    a little bit into the weeds, one thing to understand about
    criminal discovery in the United States, just like criminal law
    generally in the United States, is that there's tremendous
    diversity of systems, because we have at least 51 criminal
    justice systems in the United States, given the States and the
    Federal government.
        So, if you look across those systems, the Federal criminal
    discovery is really among the most restrictive. Rule 16 is very
    limited in terms of what information the government is required
    to disclose to the defense.
        There are a number of States that have, particularly in
    recent years, gone quite in the opposite direction, New York
    most recently, but my own State of Texas in passing the Michael
    Morton Act moved to essentially what's called an open file
    discovery system.
        Under that system, the defense typically would have access
    to essentially the entirety of the nonprivileged, anyway,
    investigative file, would know the steps that investigators
    took, regardless of whether the prosecution was going to
    present that evidence, and regardless of whether a court deemed
    it to be exculpatory or favorable to the defense.
        So, I actually think, in addition to some of the points
    that Mr. Tolman was just making about regulations that one
    would want to have in place about how evidence could be used,
    particularly in thinking about the Federal system, that
    thinking about opening discovery more with regard to facial
    recognition technology is really an essential part of achieving
    transparency and really vetting the reliability of this in the
    course of criminal adjudication.
        Ms. McBath. Thank you.
        In just the few moments I have left, Professor Friedman,
    should Congress regulate private and government-owned systems?
    I guess I know that the GAO report shows, as others have noted
    today, that facial recognition systems owned by the government,
    as well as those owned by private companies and used by
    government actors, aren't always regulated. Does the ownership
    of these systems play a role in how they are used?
        Mr. Friedman. Sure. Thank you for the question.
        I think it's essential that there be regulation. In fact, I
    think you're hearing all of us say that it's essential that
    there be regulation. The likeliest way for Congress to regulate
    is actually the vendors, the manufacturers of the products that
    are distributing on the interstate commerce. That's a
    constitutional hook to get at the regulation. So, I think it's
    essential.
        Now, you do want to regulate the use of those technologies
    by law enforcement agencies. There's been a lot of discussion
    about trust between communities and law enforcement, but you're
    just not going to see that until there's a serious set of
    regulations for how the technologies are used with very strong
    guardrails. Again, I could say more, but I see the time has
    expired.
        Ms. McBath. Well, thank you so much, each of you.
        I yield back the balance of my time, which there is none.
    Thank you.
        Ms. Jackson Lee. Your time has expired. Thank you so very
    much.
        I now recognize Mr. Tiffany for five minutes.
        Mr. Tiffany. Thank you very much, Madam Chair.
        Ms. Frederick, I want to just frame my question with the
    background that the Biden Administration is reported in the
    last couple of days to be coming out that they're going to
    enlist the wireless phone carriers to vet people's text
    messages.
        I mention that because some of my constituents believe we
    are a short leap to the Chinese Communist Party's use of
    technology in their country where they have created their
    social credit system.
        Are my constituents right to be concerned about where we're
    at here in the United States?
        Ms. Frederick. Well, I will say, as somebody who worked in
    the intelligence community for almost a decade, I think your
    constituents are right to be concerned about where these
    technologies can take us.
        What I think is particularly disconcerting is what you
    mentioned: SMS contents potentially being parsed. Email content
    has been mentioned as the next frontier. Podcasts have been
    mentioned as having a portion of unfettered conversations.
        These are bastions that shore up our culture of free
    speech. I definitely think it is of concern to see where
    authoritarian governments are taking us. Again, we have that
    system of guardrails.
        It is important, especially for conservatives and those
    expressing heterodox views, to be vigilant and to watch where
    this technology naturally goes and guard against it. I think
    we're all advocating here for certain guards in some respect.
        Mr. Tiffany. Dr. Alexander, you mentioned the State of
    Maine, in particular Portland, Maine. We also heard from Mr.
    Lee, commented communities have not been involved.
        Isn't there a role for city councils, State governments,
    those governments that are at the State and local level to get
    involved with this? Because they're responsible for their
    police forces in all instances, correct?
        Sir, I think you are muted.
        Dr. Alexander. Yes, thank you, Congressman.
        Yes, you are absolutely right, because there at the local
    level is where it all starts, in locally elected officials,
    mayors, city managers, county managers, whatever the case may
    happen to be. They certainly do need to have a voice in this.
        Because what you want to always make sure of is that your
    police agencies are operating at the highest level of training
    and certifications. We don't have that yet across the country,
    and that's why you find some communities that are backing off
    of this technology until more concrete findings are done.
        Mr. Tiffany. Yeah. Thank you very much for that.
        I am just thinking about local elected officials. I have
    many constituents, though I am in the Wisconsin, that work in
    the Twin Cities, in Minneapolis. I mean, we saw a real failure
    on the part of in particular the mayor of Minneapolis and the
    city council in addressing the riots that overwhelmed the city
    of Minneapolis last year. A lot of it is because they didn't
    take control of their police department. There were a few bad
    cops in that police department, and they needed to take care of
    them. They did not do it.
        This is the same thing. They need to address the
    technology. It isn't just the city of Minneapolis. It's cities
    across the country, as well as States. They have the purview,
    they have the obligation to oversee their police departments,
    and they should do that, including in regard to using this type
    of technology.
        Final thing that I would say before I am going to yield to
    Mr. Biggs.
        This is the example of the limits of technology. I think
    about simple things, like with children. They get better
    reading retention when they read off from paper versus off from
    an electronic format.
        I think about police the same way here. You cannot replace
    boots on the ground and good investigative work with technology
    in all instances.
        I yield to Mr. Biggs.
        Dr. Alexander. That's correct.
        Mr. Biggs. I thank the gentleman for yielding.
        My question for you, Mr. Tolman, is this. U.S. Capitol
    Police has been given Army surveillance equipment to start
    monitoring Americans. We have a report from a group called
    Surveillance Technology Oversight Project that says that they
    think that represents an expansion of police power and
    surveillance.
        Since I just have a few seconds, and then I am going to get
    to ask the question to you, they point out the expansive nature
    of the surveillance state.
        How do you see this role of actually using military
    surveillance, giving equipment and technology to law
    enforcement? How does that expand the surveillance State?
        Mr. Tolman. Well, in this particular instance it's of grave
    concern because right now the Capitol Police are exempt from
    the Freedom of Information Act. So, not only would it be
    difficult under rules of discovery for a defense counsel, you
    also would not be able to get transparency.
        So, it creates a very powerful surveillance State in an
    agency that probably is unaccustomed and does not have the
    history of being these surveillers of United States citizens.
    So, it's a recipe for disaster.
        Mr. Biggs. Thank you.
        My time has expired, Mr. Tiffany.
        Mr. Tiffany. Yes. I will yield back with just one final
    thing.
        I think we should put in the mix here what is happening
    with these text messages, that they're talking about enlisting
    the phone companies, the wireless carriers, to intercept
    people's SMS messages. I think that's a very chilling thing and
    that should not be done by the Biden Administration. We should
    throw that into the mix in dealing with this issue as we go
    forward.
        Thank you very much, Madam Chair.
        Ms. Jackson Lee. Well, thank you very much. I know that
    these issues reach beyond Administrations and deal with
    important questions that this Committee is now bringing
    forward. Thank you so very much.
        It's now my pleasure to yield to the gentlelady from
    Pennsylvania, Ms. Dean, for five minutes.
        Ms. Dean. Thank you, Madam Chair. Thank you for convening
    this hearing on innovative technology and its appropriate use
    and regulation under the law.
        I also thank all our testifiers and advocates today for the
    enlightening things that you're able to share with us.
        Mr. Lee, I would like to start with you. Companies like
    Clearview claim that through their database it can
    instantaneously identify people with, quote, ``unprecedented
    accuracy.'' Yet, Mr. Williams' story isn't unique. Such
    technology has resulted, as we know, in at least two false
    arrests in Michigan and one in New
    Jersey.
        Organizations such as ACLU have expressed concern around
    the risk that Clearview's technology may have on undocumented
    immigrants, communities of color, survivors of domestic
    violence, and other vulnerable people and communities. Could
    you share with us some of the dangers of this face print and
    its misuse?
        Mr. Lee. Absolutely. Thank you for the question,
    Congresswoman.
        There are a number of civil rights and civil liberties
    concerns with private access to law enforcement investigations,
    and also with law enforcement's ability to purchase private
    data. There is little to no transparency, as we said before.
        I think a fundamental issue that we need to talk about with
    respect to this hearing is that these technologies are not
    accurate, and I think we are having a conversation as if they
    are. There are significant error rates across the spectrum,
    particularly for marginalized and multi-marginalized
    communities.
        So, with little oversight, with little guidance, with no
    community input, and no meaningful ways to engage in checks and
    balances, any conversation around the use of facial recognition
    technology within the criminal legal process is something that
    The Leadership Conference and many advocacy organizations push
    back against wholeheartedly.
        We should be thinking about a way in which to envision law
    enforcement and community engagement with law enforcement that
    does not require surveillance, near-constant surveillance, nor
    near-constant over policing. That is something that we need to
    push forward towards.
        Ms. Dean. Thank you so much for that. So, transparency,
    recognition that this is not a foolproof technology, and the
    error rate, there's an awful lot more we need to learn.
        Mr. Williams, of course we are all moved by your story.
    Your young daughters watched as you were arrested for a crime
    you did not commit.
        How did your arrest and detainment affect your children,
    family, and community?
        Mr. Williams. Thank you for the question.
        Well, it mainly affected my oldest daughter. My other
    daughter was only two, so she didn't know what was going on.
    She cried, too. She just was crying because her sister was
    crying.
        Like I said earlier, I was trying to tell the story. It was
    a short time. We thought about taking her to see a psychiatrist
    because every time she sees the story on TV it makes her very
    emotional and she starts crying, telling us to turn the TV off.
    I am like, ``I am not going to jail every time you see it on
    TV, baby. It's just they're reporting the story again.''
        I had wrote something down when somebody else had asked a
    question. The police actually did investigate it. With all
    those eyeballs on the pictures, nobody said, ``These two guys
    don't look alike.'' I don't know how the human part goes into
    it, but--
        Ms. Dean. Have you ever heard any explanation for that?
        Mr. Williams. No. Nobody told me anything.
        Then we basically had to--well, I can't say force them, but
    we asked them over and over and over again for a proper
    explanation or a way to say it with some type of--I don't know
    what the word for it is. They just didn't seem like they were
    sorry. Like, they didn't want to be apologetic about it. They
    were like, ``It happens. We made a mistake.'' I'm like, ``That
    doesn't do anything for me, because all I did was come home
    from work and got arrested.''
        Then, it's other stuff, like I didn't get dinner that
    night. They had already served food at the prison. So, I got
    off work, I got to go sit in a cell with no food and no
    drinking water. It was terrible for somebody that--I wasn't
    ready for it.
        Ms. Dean. I have to say, Mr. Williams, thank you for
    sharing that with us. I asked about your children, but we have
    to realize what impact this has had on you, a long-term impact
    on you, to be picked up after work and arrested and detained so
    inhumanely and so incorrectly.
        So, thank you, Madam Chair. I see my time--
        Mr. Williams. I didn't mean to cut you off. I don't know if
    you can hear that I got a small speech impediment right at this
    moment. Last year, I also suffered some strokes. They're
    looking into that to see what actually caused the strokes. I
    have no idea at this point. I had one doctor say it could have
    been attributed to stress or whatnot. I don't know if he has a
    way to prove it. I don't know. I did have strokes last year
    after.
        Ms. Dean. God bless you.
        Mr. Williams. Thank you.
        Ms. Dean. Please, I pray for your restored health.
        Thank you. I yield back.
        Ms. Jackson Lee. Thank you. The gentlelady's time has
    expired.
        Mr. Williams' story should inspire all us, among others, to
    finding a bipartisan pathway forward.
        Let me now yield five minutes to Mr. Massie.
        You're recognized, Mr. Massie, for five minutes.
        Mr. Massie. Thank you, Madam Chair, for holding this very
    important hearing on a very important topic.
        Before I jump into facial recognition, I want to talk about
    name recognition.
        Imagine a system, a computerized system, that instead of
    basing the adjudication of your civil rights on the distance
    between your eyes or the shape of your nose or where your ears
    are in relation to your cheekbones, it's based on the spelling
    of your first and last name and your birthday and whether you
    might share a same name with somebody who has been convicted of
    a felony or may be in prison today.
        Well, such a system exists, and there is no judge or jury
    involved. It's called the NICS Background Check System.
        The troubling thing about facial recognition as it exists
    today, is there may be racial disparities in it. We know that
    there are racial disparities in the NICS Instant Background
    Check System. That's the system that you have to go through to
    purchase a firearm.
        My friend John Lott, who worked at the DOJ recently, has
    found evidence that this system by a factor of three to one
    produces false denials for Black males compared to White males
    because they may share a similar name to somebody who is
    incarcerated within their ethnic group.
        So, Ms. Goodwin, I appreciate the good work that the GAO
    does. You all do great work. I served on the Oversight
    Committee. We covered this topic before there, the facial
    recognition topic.
        The GAO released a report that said there were 112,000
    denials based on the instant background check and only 12
    Federal prosecutions. Ostensibly, 100,000 people committed a
    crime by trying to buy a firearm when they were ineligible.
        What we know from that is actually that they didn't commit
    a crime, but there were a lot of false positives.
        I got the commitment of FBI Director Wray in one of our
    recent hearings to look into this issue about whether there are
    racial disparities built into the Instant Background Check
    System. This is not very technologically advanced at all. He
    said he would work on it.
        I hope that this comes across your desk and that you have
    an opportunity that you might look into it. Is this something
    that your part of the GAO would examine?
        Dr. Goodwin. Thank you, Congressman. Actually that was my
    report. I worked on that report.
        Mr. Massie. Excellent.
        Dr. Goodwin. The prohibited purchases report. So, we are
    happy to have a conversation with you about additional work we
    can do in that area.
        Mr. Massie. Wonderful. Thank you so much. Thank you for
    that report.
        They do collect race information on the Form 4473. So, if
    we could just take another level, it wouldn't have to be as
    deep and thorough as the report that you did already, but it
    would be very helpful, I think.
        I noticed that the beginning of this recent report on
    facial recognition--or your testimony--started with: We
    surveyed 42 Federal agencies with law enforcement employees or
    internal law enforcement. I thought, ``Whoa, whoa, whoa, stop
    right there.'' That to me is troubling, that we have 42 Federal
    agencies that have law enforcement.
        Maybe this is something the Democrats and Republicans could
    get together on. Maybe we have too many organizations. If the
    Department of Education has a police force, then maybe we have
    too many police forces at the Federal level.
        Moving on, I wanted to ask one of our professors here,
    maybe Professor Laurin, about Brady material, possible
    exculpatory evidence that's produced and that the prosecution
    may not want to share with the defense.
        You mentioned that the way they get around some of the
    typical safeguards is they say, ``Oh, we just used it to
    identify the suspect and we're not using it for the
    conviction.''
        Can you talk about how that's problematic and whether
    defense attorneys can get Brady material from facial
    recognition companies?
        Ms. Laurin. Thank you for the question.
        I'll start with the last piece that you mentioned, which is
    getting Brady material from companies. In other words, there
    may be instances, assuming a world that we don't quite live in
    yet, where facial recognition matches, say, are actually
    introduced in evidence in a criminal case.
        In those instances, the defense would certainly want to,
    and a competent defense would, sort of interrogate: What's
    inside the Black box that generated this match?
        Well, one of the complicating features here is the
    proprietary nature of many of these technologies.
        So, we haven't seen this yet so much in the facial
    recognition context, but we have seen it actually in the
    context of DNA with certain more novel analyses of low copy
    DNA, et cetera, where the defense has been denied the ability
    to access the source code, access what is claimed by companies
    to be proprietary information protected by trade secrets. That
    intellectual property law has been invoked to quash defense
    subpoenas.
        So, one of the many complicating features here, one of the
    many limits on the ability of the defense to vet this in a
    criminal context, is this proprietary dynamic.
        Layered on top of that are a number of complications that
    derive from Brady doctrine and disagreement over the scope of
    Brady and deciding when defendants are entitled to what we
    would call Brady material ex ante versus after the fact.
        I know you have limited time. I am happy to pause there.
        Mr. Massie. I see my time has expired. I just want to say,
    I hope Congress will weigh in on this instead of, like the
    Brady doctrine, allowing the courts to write this for us,
    because it does seem to be a problem not just within facial
    recognition, or yet, but with--across all the domains.
        I yield back.
        Ms. Jackson Lee. Thank you very much.
        I now recognize the gentleman who has dealt with some of
    these tech issues from a different perspective, the gentleman
    from Rhode Island, Mr. Cicilline.
        You are recognized for five minutes.
        Mr. Cicilline. Thank you, Madam Chair, for calling this
    very important hearing.
        Thank you to the Witnesses for your really compelling
    testimony.
        I want to begin with you, Mr. Williams. I am just wondering
    whether--first, thank you for being here. Sometimes we talk
    about these issues in terms of public policy, and it's good to
    be reminded this actually impacts people's lives in a very
    profound way, and your story is one example of that.
        My question to you is, did it seem like the police had even
    bothered to conduct an actual investigation, or did they appear
    to be relying solely on what the computer told them in
    connection with your arrest?
        Mr. Williams. Okay. Thank you for the question.
        So, they did provide information. Like, I didn't find out
    any of this until after we went to court. They had a lineup of,
    I guess, six guys, and none of us looked alike. I was like,
    ``Who put this together?'' I am going to guess, because I
    wasn't there, but somebody picked me and said, ``This is the
    guy right here. Do you see him in this lineup?''
        I looked nothing like the other guys. I was actually 10
    years older than all the other guys in the pictures. They
    didn't use my current driver's license photo, they used one
    from six years ago. Well, at this point it's eight years ago.
        Mr. Cicilline. Thank you.
        Director Goodwin, are there specific privacy concerns
    related to potential data breaches of facial recognition
    systems that are more concerning than breaches of other systems
    used by the Federal government?
        Dr. Goodwin. Yes, Congressman. Thank you for that question.
        So, yes, there are. So, as I mentioned earlier, your face
    is permanent, it's distinctive. If that information is
    breached, it's a lot more problematic and more concerning than
    if your password is breached, because you can change your
    password, but you can't change, for the most part, you can't
    change your face.
        So, there are major privacy concerns about what it looks
    like when the technology--when that information is breached.
        Mr. Cicilline. Thank you.
        Mr. Lee, facial recognition systems have varying levels of
    accuracy, but we know they're especially ineffective in
    identifying people accurately from communities of color and
    women.
        I am just wondering, is there even any training that might
    help law enforcement to overcome these inaccuracies, or are
    they so embedded in the system that we should ban facial
    recognition outright?
        Mr. Lee. Thank you for the question, Congressman.
        I think that we need to think about, one, contexts of
    policing that don't involve surveillance and don't involve
    overly surveilling marginalized communities and over policing
    them as well.
        Also, I would highlight that one of the things that we need
    to think about is that the technology doesn't--if the
    technology can't--is not surveilling or if the technology is
    not working to the same communities that it is trying to help,
    is this technology worth using in the first place?
        So, that's something that we need to think about,
    particularly within the context of civil rights concerns.
    Because, again, Mr. Williams was wrongfully arrested,
    wrongfully detained for a crime that he did not commit based
    off of a lineup and setup and use of facial recognition
    technology that was not authorized by the local government, was
    not known by Mr. Williams himself, was not understood under any
    circumstances by the people using it, and had varying levels of
    accuracy across the board that were not given to Mr. Williams
    at the time or to the law enforcement--
        Mr. Cicilline. I hate to interrupt you. I want to get to
    one more question.
        Professor Laurin, building on what Mr. Massie was asking
    about, what Mr. Lee just mentioned, we could just simply
    require prosecutors to inform a defendant that facial
    recognition technology was used to identify them in any part of
    the process. That's one reform we could do.
        In addition, we could require that the prosecutors disclose
    any other matches that are sort of exculpatory, statutorily, as
    Mr. Massie was saying with respect to Brady. There are things
    we could do to at least make the process more transparent and
    hopefully give defendants the opportunity to challenge this
    evidence.
        Ms. Laurin. I agree. There certainly are other items that
    could be added to that. For example, to the extent the systems
    report out confidence levels, that is, something that seems
    necessary to disclose.
        I also think this issue of being able to get at that Black
    box and actually know what's driving the results, which does
    then involve these questions around intellectual property, is
    really an important issue to get at.
        Mr. Cicilline. I just want to say, because the Chair
    recognized this, part of this is facilitated by the monopoly
    power of these large technology platforms, the fact that they
    are unregulated, the fact that they are collecting enormous
    amounts of surveillance. As Ms. Frederick said, the danger of
    integrating all this presents real challenges.
        So, I think it also requires us to regulate how private
    companies can provide this technology to law enforcement, and
    larger questions about how we have to rein in Big Tech. I look
    forward to following up with Ms. Frederick in more detail on
    her very compelling testimony.
        I yield back. Thank you, Madam Chair, for the indulgence.
        Ms. Jackson Lee. The gentleman's time has expired. Thank
    you very much.
        We have other Members who have yet to ask their questions.
    So, we will certainly move so that you can be included.
        Now, I am recognizing Mr. Fitzgerald for five minutes.
        Mr. Fitzgerald.
        Mr. Fitzgerald. Thank you, Madam Chair. Thank you very
    much. Fascinating stuff this morning.
        I just wanted to move maybe in a direction of a little bit
    away from the law enforcement aspect to just the private
    sector, which some of the Members touched on this morning.
        As we see, iPhones that use face recognition. Any time you
    are going through the airport now, you see the Clear system,
    which is allowing access for individuals in airports on a
    regular basis. Then some employers, now that we're reading, are
    using this in relationship to their employees and under the
    auspices of security. So, there's a lot of different things
    happening in the private sector.
        The question I had for Ms. Frederick and Mr. Tolman, can
    you address some of the constitutional and privacy concerns of
    private sector use, particularly related to the difference
    between using facial recognition technology for verification
    purposes rather than just flat-out identification?
        Ms. Frederick. So, I will start here. I think generally,
    from a wave-top level, it's that outsourcing of surveillance
    that portends more concrete, potential concrete violations of
    the Fourth Amendment.
        I'm not a lawyer. I don't profess to be. When I see the
    surveillance State basically outsourcing this job to private
    companies that don't fall under the remit of the United States
    Constitution, that's what starts to worry me as a citizen,
    somebody who has been behind the powerful technologies that are
    employed at a commercial level also by the surveillance States
    overseas.
        To me, it's that outsourcing to private companies that we
    need to think about when it comes to the Constitution, because
    some reports indicate that is expressly made to skirt the
    constitutional protections.
        So, I'll let Mr. Tolman give his broader expertise on this.
        Mr. Tolman. Yeah, I think that last point is where I wanted
    to go, which is oftentimes the use of third-party providers is
    an end run around the protections. We have already seen one
    court has indicated that the Baltimore Police Department
    violated the Fourth Amendment in its use of facial recognition
    technology. That would be one pressure point to push you
    towards utilization of a third-party provider, one in which you
    have a somewhat lower standard when utilizing the evidence from
    them.
        We don't know the nature of some of those partnerships.
    That's the biggest problem right here, is the lack of
    transparency in the information. We don't know what it is,
    sometimes even the questions we need to ask to find out how
    pervasive that relationship is.
        Mr. Fitzgerald. Thank you. Great answers.
        The other question that I would have for both of you would
    be there's been some discussion about a full-out ban. What
    we're seeing across the Nation is some municipalities through
    ordinance have been progressively addressing this issue as it
    emerges, as part of something that's under their control, many
    times it is a municipal court system. They're moving forward,
    city councils and even some county boards are moving forward to
    full-out bans.
        Is that practical at this point? You can probably hear it
    in my voice. It doesn't seem like it is to me at this point.
        Mr. Tolman. I would just quickly say that it is hard to
    imagine that this powerful tool is not to be utilized at all. I
    understand the calls for bans, but that's what makes this so
    difficult, is there are circumstances in which this powerful
    technology may be the only thing that may save a victim or save
    a town from some horrific crime or from a terrorist attack, for
    example. So, getting this right in how we do authorize law
    enforcement to use it is right now the most important job I
    think this Congress has.
        Ms. Frederick. I prefer to think of it more--
        Mr. Fitzpatrick. Ms. Frederick, do you care to comment on
    that.
        Ms. Frederick. Yes, sir. I prefer to think of it more as a
    tactical pause, take the time to get it right. So, I think
    there are measures with which we could do so.
        Lawsuits are being fought in the courts as well. ACLU is
    suing Clearview AI. Its Illinois arm filed a 2018 lawsuit
    against Chicago Police. So, there's other mechanisms as well as
    municipalities to take that tactical pause, take the time to
    get it right.
        Mr. Fitzgerald. Thank you.
        Thank you, Madam Chair. I yield back. Thank you.
        Ms. Jackson Lee. I thank the gentleman.
        I am now pleased to recognize the gentleman from
    California, a former AUSA, Mr. Lieu.
        You are recognized for five minutes.
        Mr. Lieu. Thank you, Chair Sheila Jackson Lee.
        I am super excited that you called this hearing. My office
    and I have been working on facial recognition for over two
    years. The reason it's taken so long is, as the Chair has aptly
    stated, it is a can of worms. When you look at this issue, it
    can get very complicated.
        We have worked on legislation that is essentially complete
    now. It basically requires a warrant for most cases of the use
    of facial recognition technology. It sets auditing and bias
    testing standards. It requires reporting. It prohibits facial
    recognition technology for most First Amendment-protected
    activity. There are a number of other provisions.
        We're going to circulate that legislation to the Members of
    this Committee, both Democrats and Republicans, for your review
    and comment and coauthorship.
        So, thank you, Chair Lee, for this hearing.
        My first question goes to Professor Laurin.
        We already know from this hearing, facial recognition
    technology implicates the First, Fourth, and Fifth Amendments.
    I want to talk about the Equal Protection Clause, because there
    is this disparity in accuracy in terms of the color of your
    skin. Would there also be an equal protection violation if we
    had government agencies deploy this knowing that similarly
    situated people are being treated differently in terms of
    surveillance?
        Ms. Laurin. So, thank you very much for the question.
        I think that in answering the question I want to sort of
    distinguish between constitutional doctrine as it stands and
    maybe a more intuitive sense of what is rightfully understood
    to be constitutionally problematic.
        So, I think the challenge with using the Equal Protection
    Clause and the doctrine around it to get at these issues of
    bias in facial recognition is that existing Supreme Court
    doctrine requires that essentially discriminatory intent be
    proved for State action to be deemed to be a violation of the
    Equal Protection Clause.
        That presents a hurdle when one is working with evidence of
    disparate impact. There's an evidentiary gap often in getting
    from the State realizes there's a disparity to the State wants
    to discriminate on the basis of race or on the basis of sex.
    That has been a real difficulty in using the courts to get at
    these problems of disparity.
        Now, that doesn't mean that it wouldn't be understandable,
    appropriate for Congress to say, ``We see a problem in these
    disparities,'' and want to legislate to require that
    disparities themselves be sufficient basis for limiting the use
    of technology, et cetera. Of course, one needs to think about
    what the hook would be for that in terms of section 5 or the
    Commerce Clause or something along those lines.
        I think that existing doctrine presents a challenge because
    of this requirement of discriminatory intent.
        Mr. Lieu. Thank you. I appreciate that.
        My next question goes to Professor Friedman.
        First, let me take a step back and say I do agree with Dr.
    Alexander and Mr. Tolman that we can't just ban this
    technology. If you look at the course of human history, nearly
    impossible to ban technology. We can regulate it.
        Professor Friedman, because there's so many different
    iterations and possible uses and situations for facial
    recognition technology, what do you think about imposing a
    warrant requirement that can actually take into account all the
    different particularized factors before deciding whether any
    specific case we would use facial recognition technology?
        Mr. Friedman. Thank you for the question.
        I just want to make a comment about the ban versus
    moratorium or strategic pause point, which I think everybody is
    recognizing. We got the cart ahead of the horse here, and
    that's the problem. So, regulation is the only shot we have of
    getting the horse back out in front.
        Warrant requirements are useful in some circumstances and
    not others, and it depends on the use case for the technology.
    So, for example, if the use case is identification, which is
    what most agencies are doing right now, they take a probe photo
    and they compare it to a database, a warrant requirement makes
    sense, but only to get permission to use the technology because
    there is a reasonable belief that the photo that you have got
    is somebody that is suspected of a crime that is permitted
    under the statute. I, for one, would only allow the use facial
    recognition for very serious crimes.
        So, that is a use of the warrant that makes sense. The
    warrant can't tell you, for example, that a particular
    individual committed the crime. It's just to use the
    technology.
        Mr. Lieu. Great. Thank you.
        I see my time is up, and I yield back.
        Ms. Jackson Lee. The gentleman's time has expired.
        I think we have present with us the distinguished gentleman
    from Utah.
        Mr. Burgess Owens is recognized for two minutes.
        Mr. Owens. Thank you, Chair Jackson Lee and Ranking Member
    Biggs. Thank you for holding this very important hearing today.
        The concerns surrounding facial recognition technology
    demand a bipartisan solution, and I look forward to working
    with my colleagues to address these concerns.
        I'd like to thank the Witnesses today.
        Mr. Williams, we all agree on the unfairness of what you
    and your family have had to endure. Thank you so much for your
    decision to stay in the fight, to share your experiences, and
    do your best to make sure no other Americans have to experience
    what you and your family are going through.
        I'd also like to give a special welcome to my friend and
    fellow Utahn, Mr. Brett Tolman. Along with other
    accomplishments mentioned previously, Brett has also been a
    very strong advocate of criminal justice reform.
        I am finding the upside of being toward the end of the
    questioning is the remarkable education that a person received
    over the last couple of hours. The downside is the questions I
    had coming into the session have been answered. So, I am going
    to yield the remainder of my time back to Ranking Member Biggs.
        Before I do, I would like to highlight something that was
    mentioned previously, and that is the heartwarming bipartisan
    concern that I am feeling and seeing as we go through this
    topic.
        I'd also like to point out that as we do confront solutions
    of solving the increased crime that we are seeing everywhere
    that we cannot rely on technology. Technology is our tool to
    help support human relationships, and all human relationships
    are based on respect.
        We cannot continue to demean and disrespect the good
    servants, the 90 percent of good men and women policing our
    communities and expect technology to make up for it.
        I am convinced that this Committee will find the solutions
    and address the concerns of facial recognition technology.
    Let's take the same passion to bring back the respect for our
    law enforcement officers, men and women, the same respect that
    I had when I experienced it as a child. Our communities will
    have the benefit of more confidence in our future innovations
    once we have that accomplished.
        With that, I would like to yield back my remaining time to
    Mr. Biggs.
        Mr. Biggs. I thank the gentleman for yielding, and Madam
    Chair.
        Just a couple of quick points. This has been a very
    enlightening hearing. We have not really addressed, in my
    opinion, enough the question on reasonable expectation of
    privacy that's been shattered by the data scraping that goes on
    by private concerns to develop these databases which are being
    referred to.
        I hope that we can expand our investigation into that,
    because I don't think the question has been settled through the
    courts yet either. If it has, I haven't seen it. We certainly
    need to get to that.
        I also want to comment on Mr. Lieu's legislation.
        I look forward to reading it, Mr. Lieu, and I appreciate
    your efforts on it. I hope that we can also integrate some of
    the work that was done in the previous iteration of the OGR
    Committee with Chair Cummings and working on that as well. So,
    I look forward to seeing it, Mr. Lieu, and hope that you can
    get that to us soon. I appreciate it.
        When I want to ask Mr. Tolman this question because it
    really gets to the heart of some of what we're talking about.
    This is just, as Mr. Lieu said, this is a can of worms when you
    open this thing up.
        When we start bringing together other technologies, we have
    discussed this SMS and email, and we have moved from just using
    this mere identification, which is in and of itself a problem,
    to the potential to track movement, this notion of science
    fiction-type, pre-crime, and stopping pre-crime.
        What's your take on that, in a very brief way, that we're
    on a spectrum that's going to keep moving to trying to stop
    people from committing crimes before a crime is ever committed
    using this technology and others combined?
        Mr. Tolman. Yeah, I share the concern. We have seen that
    when law enforcement is given additional technology their first
    instinct is to utilize it because they have a sincere and
    genuine desire to work on behalf of our communities and the
    victims of crime.
        However, they are often the last one to actually ask the
    question: Should we utilize this technology? That has to be the
    reasoned discussion of Members of the legislature that
    identifies this.
        We are already seeing that speech and social distancing
    under COVID and areas where we have not ever been, are now
    areas where we are focusing law enforcement technology and
    action. Because of that, we're on a slippery slope, and I would
    share your concern.
        Mr. Biggs. Thanks, Mr. Tolman. I hate to cut you off, but I
    want to finish from our side where we started with the Chair,
    and that's the testimony of Mr. Williams.
        So, Mr. Williams, in your testimony, your written
    testimony, you said, quote, ``I don't want anyone to walk away
    thinking that if only the technology was made more accurate its
    problems would be solved,'' close quote.
        Well, I think the issues which we have discussed today are
    not just issues with accuracy of the technology. I think we're
    talking about a total invasion of privacy, which is absolutely
    unacceptable, which at some point is going to give too much
    power to the state. We had actually seen it already in your
    case, Mr. Williams, and others that we have discussed today.
        So, I am looking forward to working with the Chair, Mr.
    Lieu, and others on this Committee who have a sincere interest
    in resolving this issue.
        Thank you, and I yield back.
        Ms. Jackson Lee. Thank you, Mr. Biggs. You are absolutely
    right, we have a sincere interest in resolving this issue, and
    there are layers of issues that we can respond to as a
    Committee in a bipartisan manner.
        Speaking of bipartisanship, I'm delighted to yield to the
    gentleman from California, a former sheriff, Mr. Correa, for
    five minutes.
        Mr. Correa. Thank you, Madam Chair, for holding this most
    important hearing.
        I want to thank all our Witnesses today for some very good
    testimony.
        Mr. Williams, I will also say, hearing your story, being in
    a cell for 30 hours, not knowing why or what you were accused
    of, is alarming, tragic at many levels.
        As we think about society today, when you give your
    fingerprints, you give permission to have your fingerprints
    taken. When you go in for a live scan, you say, ``Here are my
    prints, take the scan.'' When you give your DNA, you give it
    with permission, knowing that somebody is going to do a DNA
    scan on you.
        When it comes to facial recognition, no consent is
    necessary. In fact, most people don't even know that their
    information, their facial information, is being collected by
    somebody, a private entity out there.
        Mr. Bertram Lee mentioned that 133 million Americans--let
    me repeat that--133 million Americans have their facial
    recognition data in a database some way or another in this
    country. I presume that most, if not all, gave that information
    or gave their facial information without any consent or even
    them knowing that data was taken from them.
        So, Professor Laurin and Professor Friedman, today I have a
    question for you. We discussed the Constitution, our rights. In
    effect, are there any regulations, laws that govern to limit in
    any way possible a private entity's ability to collect facial
    recognition data? As a taxpayer, as a citizen, am I going to
    have to accept the fact that a private firm has my facial
    recognition data to sell or use as they wish? Question.
        Mr. Friedman. Professor Laurin, if I may?
        Ms. Laurin. Please go ahead.
        Mr. Friedman. I just want to appreciate the question at a
    couple of levels because I think it's so critically important.
        It's very easy to fall into the language of constitutional
    rights here, and the constitutional rights are, obviously,
    critically important. The interpretation of the Constitution by
    the courts often doesn't touch the things that we're talking
    about, in part because the technology is rushing ahead of the
    courts.
        So, you could not be more correct that there is an urgent
    need for regulation, for legislation, both as to private
    companies and as to law enforcement agencies.
        Then as to the private companies, I don't know of any
    congressional law that deals with this. Some States have
    stepped in, like Illinois in this space. For the most part
    there's a void. I think the need for legislation is essential.
        Mr. Correa. Ms. Laurin?
        Ms. Laurin. I can really only essentially echo what
    Professor Friedman said. He speaks my mind. I think that there
    is a tendency, actually, to overly prioritize the
    constitutional stuff and to miss the fact that actually the
    Constitution is a floor, not a ceiling, in terms of
    protections.
        In fact, often the constitutional protection is lower by
    design because the courts say really there are details for
    Congress to figure out, it's really not our institutional
    place.
        Mr. Correa. So, I will ask you again. Let me repeat my
    question.
        As a taxpayer, as a citizen, am I going to have to accept
    the fact that right now a private third party has my facial
    recognition information and they can do whatever they want to
    do, sell that information to whoever they want to sell it,
    without any repercussions, without any regulation, without
    violating any kind of a law? Is that the case? Is that the
    State of the laws in this country today?
        Ms. Laurin. The best answer I can give you, without
    presenting myself as an expert in every statutory scheme
    governing, for example, electronic communications, et cetera,
    is that I do think that there are at least some data privacy
    regimes, statutory data privacy regimes that would limit some
    activities.
        In the main, there is very little regulation currently.
    Certainly, the Constitution has virtually nothing to say about
    private nonstate action. That is why congressional action is so
    important.
        Mr. Correa. So, I'm left here with a very unsettling
    feeling that I essentially have no remedy for somebody using my
    facial data recognition information for whatever they want to
    do with it?
        Mr. Friedman. Well, you can create one. You have the--
    Congress has the power to regulate products moving in
    interstate commerce. You could change that state-of-affairs if
    you chose to.
        Mr. Correa. Thank you, Madam Chair. Ran out of time. I
    yield.
        Ms. Jackson Lee. The individual ran out of time. Mr.
    Correa, we are all running out of time. This is such an
    important issue, and I'm very grateful for all my Members. I
    listened to--as I yield just for a moment, I listened to
    Professor Friedman over and over again about regulation, and
    that is what we are having this hearing for, because we are
    working on legislation, and I look forward to working with Mr.
    Biggs, but also with our colleagues who are, likewise, working
    on legislation to be able to address the question of a
    regulation or a construct that needs to address this question.
    So, thank you all very much.
        It's my pleasure to yield to the Vice Chair of this
    Subcommittee from Missouri, the gentlelady, Congresswoman Bush,
    for five minutes.
        Ms. Bush. Thank you, Chair, for convening this hearing.
        We as a Committee have spent significant time addressing
    the brazen and broad scope of power held by law enforcement
    agencies, from the FBI to various prosecutorial entities under
    the Department of Justice. Time and time again, we are met with
    concrete examples of unfettered law enforcement practices that
    not only undermine our fundamental civil liberties, but our
    basic principles of human dignity and security.
        When the ACLU conducted a study with Members of Congress
    and a mug shot database, 28 Members of Congress were falsely
    matched, including the late Congressman John Lewis, and this
    was Members of Congress, public officials. Imagine what it's
    like for everyday people across this country.
        What we do know of this technology is that the darker your
    skin tone, like mine, the more likely you will be falsely
    identified.
        During the Ferguson uprising following the murder of
    Michael Brown, Jr., I recall wearing bandanas as a response to
    the tear gas. It was during that time, though, that we realized
    that we needed to wear bandanas because of the likelihood of
    facial recognition technology being used against protest
    movements and surveilling each and every one of us involved in
    the Ferguson uprising.
        Director Goodwin, the GAO found that 14 agencies reportedly
    use facial recognition technology to support criminal
    investigations. Yes or no, was FRT used by the Federal law
    enforcement agencies during the protest following the torture
    and murder of George Floyd? It's just a yes or no.
        Dr. Goodwin. Yes.
        Ms. Bush. What are the collateral consequences of
    protestors being identified by these technologies?
        Dr. Goodwin. So, Congresswoman, we didn't go into that
    issue, but we raised the concerns about privacy and accuracy.
    So, of course, with accuracy, the concern is that people would
    be misidentified by the technology, and that could have adverse
    consequences. The privacy issue is that there are faces. A
    person's face could be out there and could be used a number of
    ways. So, our focus was to look at the lay of the land for how
    law enforcement were using the technology.
        Ms. Bush. Thank you.
        In 2016, it was reported that police used facial
    recognition to surveil crowds during the Freddie Gray protest
    to find people with outstanding warrants.
        Mr. Lee, are there any protections for protestors'
    identities when they are in public spaces but engaging in First
    Amendment-protected activity?
        Mr. Lee. Thank you for the question, Congresswoman.
        This would be, in our mind, a clear violation of the First
    Amendment. Also, there are serious privacy and civil liberties
    concerns with the use of facial recognition technology that we
    saw not only with the George Floyd protest, but also that we
    saw in LAPD using Ring cameras to surveil Black Lives Matter
    protestors. We have serious concerns, and there are serious
    civil rights and liberties concerns about the tracking of
    protestors, especially in these circumstances and especially
    when the technology is not well-used or very accurate.
        Ms. Bush. So, Mr. Lee, how does the use of the facial
    recognition technology used to identify protestors? How does
    that influence the public's perception or opinion of law
    enforcement, or even the high-tech policing?
        Mr. Lee. There's already a tenuous relationship between
    communities that are over-surveilled and over-policed in law
    enforcement. We have seen this time and time again over the
    past year, and that is something that I think Congress needs to
    keep in mind when looking about regulating facial recognition
    technology. These are tools used by law enforcement to
    disproportionately target Black and Brown people across the
    Nation, and we need to keep that in mind, and the civil rights
    and civil liberties of those people in mind, as we think about
    what the next steps are. That is why we, as a civil rights
    community, have asked for a ban or a moratorium and a tactical
    pause, to use the language of Ms. Frederick. We think that it
    chills protests. It chills speech. It misidentifies, and it
    does not work.
        Ms. Bush. Thank you so much, Mr. Lee.
        There are local solutions that are being [inaudible].
        Ms. Jackson Lee. Ms. Bush--are we able to get Ms. Bush
    connected?
        I think we may have lost Congresswoman Bush.
        Thank you very much, Congresswoman, for those insightful,
    very insightful points that you have raised. I have been
    impressed by the direction of our questions, the depth of our
    questions, and, certainly, the importance of our Witnesses.
        Mr. Biggs, I have questions that I'm going to utilize at
    this time, but I'm happy to yield to you have been certainly
    rewarded with time. I'm happy to yield with you before I make
    my final inquiries that I hope will be important to the record
    of this hearing and proceedings.
        Mr. Biggs?
        Mr. Biggs. Thank you, Madam Chair. I know you will be
    surprised to hear this, but even though I have many more
    questions and comments about this, I appreciate those that have
    participated; but I'm going to limit my comments right there
    and, again, thank the Members, the Witnesses, and yourself.
        Thank you, Madam Chair. I yield back.
        Ms. Jackson Lee. Thank you so very much and thank you to
    the Witnesses.
        I'm going to proceed with some questions that I did not
    proceed with. As I do so, I want to make sure that I thank all
    the Witnesses again. You will probably hear me thank the
    Witnesses more than once.
        I would like to submit into the record--and then I will
    begin just some questions that I think are very important. I
    want to submit into the record the GAO report that I believe
    was entitled, ``Facial Recognition Technology, Federal Law
    Enforcement Agencies Should Have Better Awareness of Systems
    Used by Employees.'' I think that is shocking, and I think that
    is also indicative of what I think Dr. Alexander made mention
    of in terms of the numbers of law enforcement and the
    utilization of this tool without training.
        [The information follows:]

                         MS. JACKSON LEE FOR THE RECORD

    =======================================================================

    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Ms. Jackson Lee. I will, Mr. Lee, come to you for a broad
    question on civil rights. Let me ask, Dr. Alexander, 18,000
    police departments, one of the reasons why NOBLE has been so
    instrumental in helping us push for the George Floyd Justice in
    Policing Act to find regular order that will help police, not
    diminish police. How do you respond to the idea--also, to my
    Members believe that we should have a follow-up hearing with
    some of our Federal law enforcement representatives that were
    cited by this excellent report that Dr. Goodwin has put forth
    through the GAO, and that may be in a classified manner, but we
    will be presenting that in the future.
        Dr. Alexander, to note that it was determined through the
    Federal system that employees were using the system without
    their hierarchy knowing, what do you think that means for the
    18,000 police departments where this kind of technology comes
    into their possession and how that relates to your point about
    police community relationships, but also victims, and I'm going
    to call him a victim, and I hope that he can made whole, and
    that is Mr. Williams and his family.
        Dr. Alexander.
        Dr. Alexander. Thank you, Madam Chair.
        Yes, there's 18,000 police departments in this country, and
    oftentimes, we are finding more and more we have got 18,000
    different ways things are being done and how they are being
    responded to, how they are being disciplined, how they are
    being managed, how they are being trained, et cetera. When you
    have one organization--and all it takes is just one, quite
    frankly, in the eyes of the American public--they all see
    policing as the same. It doesn't make it right, but that is the
    reality of it. If I do something well as a police officer, we
    all jump up and down and say, hey. If I do something horrible,
    we all have to take that hit, too.
        To your question, I think it becomes important to recognize
    that appropriate training is going to have to be regulated at a
    Federal level, and there's going to have to be some Federal
    standard, I truly believe, the same way we do with fingerprint,
    and with DNA, and with other forensic methods that have proven
    to be of value in the law enforcement and public safety
    community, because the whole idea about this particular piece
    of technology is that it is very convoluted, and it's very
    complicated, and there are going to be cases that are going to
    go before the courts that we haven't even thought about yet as
    it relates to this technology, still yet to be examined.
        So, I just think, Congresswoman, that due diligence will be
    given to these local agencies across this country. If they have
    an opportunity to be well-trained, there would be the
    standardization to the utilization of this technology, there
    would be ongoing certification, there would be practices that
    are held to the highest standards of science. In addition to
    that, I think it becomes important as well that the public
    understands what facial recognition technology is, because we
    have talked about it a lot within the context of policing, and
    within Congress, but a lot of people in our communities across
    this country don't understand exactly what it means, and when
    they do hear about the cases, they hear about the cases that
    are often associated with that of Mr. Williams.
        Ms. Jackson Lee. I would think minimally that--and you
    don't have to answer. I'm just going to make this based upon
    your response--minimally, that police departments need to be
    aware of when the technology is in their possession, and
    whether or not it's a detective with sloppy work, that that is
    being used and the individuals given the authority to use it
    are well-trained and, as you indicated, certified.
        I would just like to place that on the record because the
    title of the GAO report said that our Federal agencies should
    have a better awareness of these systems being used by
    employees. That is actually shocking and amazing to me, and I
    think that can be parlayed out into the field with the other
    18,000 police departments.
        Thank you for your answer.
        I indicated that my concern has been the unreasonable
    search and seizure. I would like both Professor Laurin and, as
    well--and I think this was raised by one of our Members, but I
    would like maybe a succinct answer from both of you, Professor
    Laurin, with your academic background, you focused on criminal
    procedure. I don't think that we are without tools. We have the
    ability on the Judiciary Committee to look at the Federal
    criminal procedure as we do civil procedure.
        In any event, Mr. Tolman, as a former U.S. Attorney, in
    cases where an investigation results in prosecution, should
    prosecutors be required to inform the defendant that facial
    recognition technology was used to identify them in any part of
    the process? Obviously, it is investigative, and should
    alternate positive matches be required to be produced as that
    investigation goes forward and if it ultimately comes into
    court? I know that one of our Members mentioned the Brady
    defense, but how should we respond to that? Professor Laurin
    first, and then Mr. Tolman.
        Ms. Laurin. Thank you, Chair.
        My bottom line view is it's absolutely right, the
    observation that with respect to Federal criminal procedure
    there's some very direct interventions that Congress can make,
    and while I think the scope of Rule 16, frankly, is always sort
    of a fraught discussion, I think there are important limited
    interventions that can be made in terms of requiring access to
    facial recognition, to the fact of the search, to alternative
    matches, to information on confidence levels.
        Again, as I said, I think to the extent possible, it's
    really essential that the defense have access to the algorithms
    to what's inside the Black box to be able to evaluate the
    reliability of the technology. That could all be a matter of
    sort of statutory change without having to worry about the
    courts sorting through the morass of whether Brady Doctrine
    encompasses that.
        Ms. Jackson Lee. Thank you.
        Mr. Tolman. I would simply add that--
        Ms. Jackson Lee. Thank you. Yes, Mr. Tolman.
        Mr. Tolman. The Professor is absolutely correct. I agree
    with everything she just articulated.
        I would add that, unlike a lineup where a prosecutor is
    required to hand over alternative individuals that might have
    been placed in the lineup, and the rationale for the lineup
    that was utilized, facial recognition technology requires the
    prosecutor, and should require the prosecutor to turn over more
    if the intention is to give the defense counsel all that it
    needs to assess the reliability and the admissibility of such
    evidence.
        So, we are at a new ball game with this technology, and it
    will require more to be given from a prosecutor to a defense
    attorney under the strictures of our constitutional
    protections.
        Ms. Jackson Lee. I think that--
        Ms. Laurin. I would just add one additional note, which is
    that it is essential that timing be addressed because if
    defense counsel is only able to access this on the eve of
    trial, it does no good in terms of evaluating whether a guilty
    plea is an appropriate resolution. It does no good in terms of
    preparing to challenge the admissibility of evidence, and so
    early discovery is important as well.
        Ms. Jackson Lee. Early discovery and early knowledge? Is
    that my understanding?
        Ms. Laurin. [Nonverbal response.]
        Ms. Jackson Lee. Thank you so much.
        Professor Friedman, I just wanted to clarify, when you said
    ``regulation,'' in what framework are you speaking?
        Mr. Friedman. So, you know, I think what's important here
    is comprehensive regulation. That does two general things: One
    is regulate the technology as best as we understand it right
    now, so we know that there are very serious problems with the
    technology, and they need to be addressed. Then the other is,
    there's a lot we need to learn.
        So, one of the things that Congress could do immediately is
    instruct some entity, like NIST, to actually test the
    technology under operational conditions, how law enforcement is
    using it, because there are very, very serious concerns about
    accuracy and bias, particularly racial bias, and we get numbers
    reported, but those numbers bear no reflection to how law
    enforcement is actually using the technology, and what little
    we know from this suggests that those error rates may be quite
    high as others have indicated.
        So, there's a list of things that I think we should--that
    Congress should have this study, and then I think there's a
    list of immediate safeguards we could put in place, for
    example, best-practice protocols about what it means to have a
    human in the loop that verifies what the algorithm does.
        Ms. Jackson Lee. Thank you very much.
        Ms. Frederick--and I'm going to finish with Mr. Lee. Ms.
    Frederick, you have been keen on the providers, or the tech
    entities that control this technology. From your perspective,
    what would be a regulation in that entity, in that arena?
        Ms. Frederick. Well, ma'am, as you know, I work for the
    Heritage Foundation, and we are about limited government, and
    we do not really support regulation when it comes to--or robust
    regulation when it comes to private entities. So, my solution
    would be, we have to encourage the programs within these
    companies, the leaders in these companies to institute those
    privacy-by-design mechanisms, so make sure in the design phase
    of creating an algorithm, you are in viewing it with privacy
    protections, and that is why I sort of harken to the
    differential privacy. We have methods of encryption that are
    getting more and more powerful and much better, decentralized
    models of data storage, studying models of machinery.
        So, if we as--or excuse me, if you as Congress can sort of
    impress upon these companies that they need to build in these
    data privacy protections, I think that is a good start point,
    short of actual regulation on private companies.
        Ms. Jackson Lee. Well, in the spirit of my Ranking Member,
    you know this is a bipartisan hearing, so we wanted to make
    sure we welcomed your thoughts as well, which will be very
    helpful to us.
        Let me have Mr. Williams, and then, Mr. Lee, you will have
    the last word. Mr. Williams, I think you have heard from all of
    us. We are appalled at what happened to you. We are stunned. We
    know that there are good intentions. I will be introducing some
    articles where this technology was used.
        We also heard from Dr. Alexander that there is good
    policing out there working to do positive things. In your
    instance, you fell into a very bad trap. What do you want to
    leave us with as a victim, not a victim in your own self, but a
    victim of this technology that should not have happened? Again,
    I started out by apologizing to you and your family, and we
    will be eagerly watching your lawsuit possibly pursued by the
    ACLU, if I'm correct. What do you want us to know as you end
    your testimony here?
        You need to unmute.
        Mr. Williams. Yes, I will unmute. Thank you.
        First, I just want to say thank you for inviting me to come
    tell my story, and I hope that going forward, we can figure out
    a way to, like they say, to regulate because it's already being
    used, so we need to get it fixed so that it works more in a way
    that it works properly, I should say, because in the current
    state, it's wrong. They get it wrong even when they get it
    right, and I don't know if that makes sense.
        Like, you don't have a--you really don't have a say--so, I
    mean, throughout the time that nobody has ever signed up to
    say, hey, use my picture from my ID in your mug book. Like I
    said a little earlier, they didn't even use my current driver's
    license. They used one previous from when, I guess, I might
    have looked younger at that point. I don't know. I guess all
    your information is in the system, so it's available to be
    used.
        I was asked a few times about how my daughter took it, and
    I don't know what the lasting effect is on them. All I know is
    that at this point, she is upset. Every time we look at her,
    she--so, I don't know. I'm just--I hate to say I'm thankful
    that it was a felony larceny, but it just--what if the crime
    was capital murder or something like that, and then they just
    came to my house and arrested me? I don't know if I would have
    got a bond to get out and be free to even talk to you at this
    point, because the court system is backed up that they probably
    wouldn't have even got to me yet, and I would still be locked
    up for something I didn't do. All right.
        I kind of cringe to think about it like that, because I did
    not get to say anything. I didn't have any rights read to me or
    anything. They showed up, asked me my name, and I asked for a
    warrant. They didn't just bring one. I mean, I resisted arrest,
    but I was in my driveway, and I'm, like, ``what are you all
    doing?'' He was, like, ``Are you Robert Williams?" He was,
    like, ``all right you are under arrest.'' I'm, like, ``for
    what?'' He was, like, ``I can't tell you.'' I'm, like, you
    can't even tell me what I'm under arrest for, but I'm under
    arrest. They took me immediately down to the detention center,
    and I got fingerprinted and mug-shotted right then and there,
    and I assumed that my fingerprints were clear and I would be
    out, and that didn't mean anything. It didn't mean--if my
    fingerprints went in, so what?
        All right. Now, they have a mug shot to add to it. It was
    so backwards if that makes sense, right? I just feel like I'm
    just a regular, and I thought I knew the law, but I was wrong.
    So, hopefully we get some change.
        Ms. Jackson Lee. That is powerful, Mr. Williams. You are
    seeking--I would just simply say you are seeking justice.
        Mr. Williams. Yes, ma'am.
        Ms. Jackson Lee. You deserve it, you really do.
        Mr. Lee, you obviously represented sort of a family of
    those who have been fighting these issues dealing with justice
    in the criminal justice system, and, so, having listened to Mr.
    Williams and--I know the position of a ban and a moratorium,
    but just, if you would, end us on the enormity of the problem,
    if we are to have facial recognition used randomly in this
    massive hierarchy of 18,000 police departments without some
    intervention. It may be your form. It may not be. What can
    happen to persons who wind up like Mr. Williams?
        I'm shocked that you can't get a reason why you are being
    arrested. I thought you were entitled to that. To use facial
    recognition, the people that he was in the lineup with didn't
    look like him. It didn't look like him when they put the
    picture up to him. So, how is that just an undermining of civil
    rights and civil liberties in this country, if used as it
    seemed to have been used with Mr. Williams?
        Mr. Lee. Madam Chair--
        Ms. Jackson Lee. Please, Mr. Lee.
        Mr. Lee. Yes, Madam Chair. I think there's a broader
    context of policing that we must keep in mind that is
    especially instructive when talking about the case of Mr.
    Williams. Also, why so many--the Leadership Conference and its
    coalition organization support a ban, moratorium, and, Ms.
    Frederick, I'm going to steal tactical pause from you here on
    out in my policy conversations. It's because we can't separate
    the tools from the context of the American policing system. We
    have evidence of that system over decades, centuries of how
    Black bodies, and disproportionately Black people are treated
    within the criminal legal justice system.
        We can't separate those tools. Then if you add the whole
    history of that criminal legal system to a tool that is known
    in the best of conditions to be biased against Black people and
    against women and misclassifies or misidentifies Members of the
    LGBTQ-plus community, people with disabilities, right, so many
    Members of the community that we need to protect because of
    their protected status and the history of harms that have been
    done onto their bodies throughout centuries, then we need to
    have a real conversation about whether this technology actually
    works the way that we think it does. It doesn't. That has been
    proved time and time again, whether the National Institute of
    Standards and Technology, whether the research by Joy
    Buolamwini and Timnit Gebru, right, whether we are talking
    about the ACLU's use of the Amazon facial recognition
    technology to identify even Members of Congress who are public
    figures.
        It's being used in communities that are already over-
    policed and over-surveilled, and it is the least likely to work
    for those exact same communities, and the community is not
    involved in the process. There's no public airing of widespread
    use. Congress has not been--Congress has not been asked, or
    Congress has not legislated on these topics.
        Then there's even opacity with which the tech is used that
    is compounded by the opacity of policing practices in general,
    and law enforcement agencies. We don't know still, even with
    the GAO report, how deep law enforcement is using facial
    recognition technology, nor the full extent of those
    technologies' writ large.
        Community engagement is not a check box. It's a continuous
    conversation, and no one knows. There are secret hearings.
    There are classified briefings. The public does not know the
    full extent of facial recognition technology, and really
    broadly, digital evidence capacity of law enforcement capacity
    writ large.
        We will continue to consistently call for a moratorium or
    ban on these technologies, and we would be more than happy to
    work with this Committee and Congress to imagine a solution and
    imagine a world of policing that puts the civil rights and
    civil liberties of marginalized communities first, not last,
    and not using these same communities as basically test cases
    when these technologies do not work.
        Ms. Jackson Lee. Okay. Thank you so very much. Thank you so
    very much.
        Thank you to each of the Witnesses for their profound
    testimony, and thank you to my Members, or the Members of this
    Committee. Mr. Biggs, as Ranking Member, thank you for joining
    me on, I believe, a hearing that will be very constructive
    going forward as evidenced by the questions and the responses
    and, of course, the expert Witnesses that we had today.
        So, this concludes today's hearing.
        Before I conclude, I would like to submit into the record:
    Center for Strategic and International Studies, ``The Problem
    of Bias in Facial Recognition,'' May 1, 2020; Washington Post
    article, ``How America's Surveillance Networks Helped the FBI
    Catch the Capitol Mob,'' and that is dated April 2, 2021; and
    then The Washington Post responding to the ``Federal study
    confirms Racial Bias of Many Facial-Recognition Systems, Casts
    Doubt on Their Expanded Use,'' December 19, 2021. I want those
    articles submitted into the record.
        [The information follows:]

                         MS. JACKSON LEE FOR THE RECORD

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        Ms. Jackson Lee. I thank, again, our distinguished
    Witnesses for their attendance and participation. We thank all
    those who helped prepare this hearing.
        Without objection, all Members will have five legislative
    days to submit additional written questions for the Witnesses
    or additional materials for the record.
        Again, this hearing is adjourned.
        Thank you.
        [Whereupon, at 1:29 p.m., the Subcommittee was adjourned.]

                                    APPENDIX

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                            QUESTIONS FOR THE RECORD

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