Sen. Jeff Merkley is backing legislation that would prohibit federal agencies from using facial recognition and other biometric surveillance technology while making certain criminal justice grants contingent on similar restrictions by state and local governments.
Merkley and Sen. Edward Markey of Massachusetts reintroduced the Facial Recognition and Biometric Technology Moratorium Act on September 25 alongside Reps. Pramila Jayapal of Washington, Rashida Tlaib of Michigan and Ayanna Pressley of Massachusetts. Oregon Sen. Ron Wyden is a Senate cosponsor, putting both members of the state’s Senate delegation behind the measure.
The bill would prohibit federal agencies and officials acting in their official capacity from acquiring, possessing, accessing or using biometric surveillance systems within the United States. The restriction would extend to contractors working for the federal government and to information produced by systems operated by outside organizations. A federal agency could not obtain a facial recognition result from another entity to carry out identification work barred under the proposal.
Facial recognition of live images, photographs and recordings falls within the bill’s scope. So do systems that identify people by their voices, gait or other physical characteristics detected from a distance. The legislation also covers software that logs those characteristics to infer a person’s location, activities or associations. Fingerprint and palm-print identification would be excluded when the prints are not collected from a distance.
The prohibition would apply at airports, ports of entry and border areas as well as elsewhere in the country. Its sponsors cited the use of mobile facial recognition by Immigration and Customs Enforcement and Customs and Border Protection in explaining their push for the bill. They have raised concerns about government surveillance, incorrect identifications and the use of biometric technology in immigration enforcement.
Congress could authorize a particular federal use through a separate law. That authorization would have to specify which entities could use the technology, what kind of biometric identification was permitted and the purpose of its use. It would also have to establish rules for retaining and sharing information, require accuracy audits and include protections for privacy, due process and civil liberties.
Oregon state and local governments would face a funding condition under the proposal. A government seeking assistance through the Edward Byrne Memorial Justice Assistance Grant Program would have to comply with a law or policy substantially similar to the bill’s federal prohibition. The requirement would begin with the first fiscal year after enactment.
The grant provision would bring decisions about biometric technology before Oregon agencies that seek Byrne funding, including counties and cities in Southern Oregon. A sheriff’s office or police department using a covered system could face a choice between changing its practices and maintaining eligibility for that assistance. The legislation does not identify which Southern Oregon agencies, if any, currently use biometric surveillance, so it does not establish that a particular department would need to make that change.
The funding condition applies to Byrne grants, a federal criminal justice program. It does not impose a blanket restriction on every federal grant available to Oregon governments. Separately, the bill would prevent federal law enforcement agencies from spending federal money to purchase or use biometric surveillance systems.
The measure would also create a way to challenge federal violations in court. People affected by prohibited use of their biometric information could sue the federal government, and state attorneys general could bring actions on behalf of residents. Information obtained in violation of the federal prohibition generally could not be used by the government in criminal, civil or administrative proceedings. A court could award damages, attorney fees and other relief in a successful individual case.
The legislation places two questions before Congress: whether federal agencies should continue using biometric surveillance without specific statutory authorization, and whether access to Byrne grants should depend on restrictions adopted by states and local governments. For Oregon, the second question reaches from state government to counties and cities seeking criminal justice funds. Neither provision will take effect unless the bill passes Congress and becomes law.