May 25—AUGUSTA — Maine could become the first state to impose strict limits on the use of facial recognition technology by police and other government agencies statewide.
A legislative proposal sponsored by Rep. Grayson Lookner, D-Portland, would allow for the use of the digital technology in the investigation of only the most serious crimes, including rape and murder.
Lawmakers on the Legislature's Criminal Justice and Public Safety Committee voted 9-0 in favor of LD 1585 Monday, with both Republicans and Democrats backing the measure.
"LD 1585 creates clear boundaries on how the government can use facial recognition technology, and it carefully defines how law enforcement can use the technology in investigations," Lookner said in a prepared statement. "I'm proud of this bill and the process it went through, which included bringing law enforcement partners to the table."
While some states have regulated certain uses the use of the digital surveillance tool, Maine would be the first state to regulate the technology by law enforcement statewide, according to advocates. There are no federal limits on its use.
The limits would apply to state, county and municipal employees and agencies in Maine. It would not apply to federal agencies working in the state.
Facial recognition works by using a digital image to map a person's dominant facial features, such as eye shape and spacing, as well as jaw and nose lines. Software measures the distances between dozens of reference points, creating a unique profile similar to a fingerprint. The profile is then compared to the faces in existing databases, such as those that contain driver's license, state ID and passport photos or police mugshots.
While police agencies say it can be a powerful tool for investigating crimes, civil liberty advocates and others warn about the potential for surveillance of innocent people and privacy violations, as well as the possibility of misidentifying crime suspects.
The proposal moving through Maine's Legislature follows a decision by the Portland City Council in August of 2020 to ban the use of facial surveillance by police in the state's largest city. Portland voters put more teeth in that ordinance last November, approving a referendum proposal to add penalties and open the door for civil lawsuits if officials violated the ordinance.
About two dozen U.S. cities have also banned the use of the technology by police in recent years, including Boston, San Francisco, Oakland, California, Minneapolis and Portland, Oregon. A handful of states have limited the use of facial recognition by government including New York, which last year placed a two-year moratorium on the use of the technology by public school officials, and Virginia, which in February passed a law limiting its used by local law enforcement and campus police but not state police.
The use of facial recognition technology has alarmed civil liberty advocates, who worry about expansive police surveillance and privacy violations. The technology has been shown to misidentify people of color, especially women of color, at much higher rates than whites.
Banning facial recognition was one of the demands issued by Black Lives Matter Portland in response to nationwide protests against police brutality in the wake of the May 2020 murder of George Floyd by a Minneapolis police officer.
Lookner's bill would require police to have probable cause before they use facial recognition in the investigation of a crime and would limit searches to databases maintained by the Department of Motor Vehicles or the Federal Bureau of Investigation.
The ACLU of Maine, which also backed the city of Portland's ordinance change, hailed the committee's passage of the bill in a statement released Tuesday.
"Facial recognition technologies give government actors the opportunity of surveilling us constantly and without suspicion, violating core rights of privacy, association and expression," Michael Kebede, the ACLU of Maine's policy counsel, said. "This bill is an important step in maintaining democratic control over the technology, instead of letting the technology and its unregulated use run roughshod over our rights."
The legislation is opposed by the Maine Sheriffs Association, which told lawmakers that claims of widespread misuse of the technology were being over stated by advocates for the bill.
"Looking toward the future, prohibiting law enforcement from using tools that may play a role in protecting Maine citizens is not a responsible and open-minded approach," Penobscot County Sheriff Troy Morton, the association's president said earlier this month. "Twenty years ago, al-Qaida terrorists passed through the Portland Jetport before they ultimately caused a series of terrorist attacks that killed nearly 3,000 people. Facial recognition was not yet developed in 2001, but the question begs to be asked, how many lives could be saved if it had?"
Morton said sheriffs in Maine use iris-scan technology to verify identities, such as when transferring jail inmates, and the bill was unclear whether that technology would also be banned from use.
The Maine State Police offered testimony neither for nor against the bill. noting they currently do not have the capacity to use facial recognition software but have used the systems of other states to aid in the investigation of crimes and to identify the victims of violent crimes.
"We recognize that with new and emerging investigative technologies there can be concerns surrounding privacy, civil rights, and civil liberties," Major Brian Scott of the Maine State Police said in testimony to the committee. "We believe those concerns can be balanced with the value that these technologies can have on criminal investigations and public safety and to ensure we are making the most effective use of public resources allocated to public safety agencies."
But, the Immigrant Legal Advocacy Project, a Maine-based non-profit that provides assistance on immigration law and other legal aid to low-income residents, was among the advocates who said facial recognition software can lead to unwarranted charges for Black people or even deportation.
"Face surveillance technology can be used by law enforcement and immigration enforcement to identify and track people without their knowledge or consent," Julia Brown, ILAP's advocacy and outreach director said in written testimony to the committee. "This technology is racially biased — studies show that the technology works best on middle-aged white men, and is rife with errors for people of color, women, children, or the elderly."
The bill will next move the Maine House of Representatives and then to the state Senate for additional consideration likely in June. It wasn't immediately clear whether Gov. Janet Mills would sign the bill, if it passes.