San Francisco is expected to become the first city in the United States to outlaw the use of facial recognition technology by police officers and other government officials. Police use of facial recognition raises legitimate concerns. Face recognition is a huge danger to our privacy and might stifle First Amendment-protected protests and other legal activity if there are no sufficient constraints in place. Given these issues, it makes reasonable to keep the technology out of the hands of law enforcement until appropriate policies are in place. While San Francisco officials examine a ban, we should think about whether there are policies in place that would allow police to employ facial recognition without jeopardizing our civil freedoms, or if the risk of misuse is so severe that a ban is necessary.


The term "facial recognition" refers to a variety of technologies that employ automated picture analysis to confirm identity. While facial recognition technologies have recently received a lot of attention, they have been around for decades. Face recognition has received a lot of attention recently because of its improving accuracy and widespread use.

Face recognition systems are used by private businesses, police enforcement organizations, and national governments all over the world. At its best, facial recognition may help banks and schools improve security, assist the blind, and make payments easier. In its worst form, though, it is an ideal tool for constant and widespread surveillance. Authorities in China employ facial recognition to monitor and punish jaywalkers. This technology is a critical component of one of the world's most extensive, intrusive, and oppressive monitoring systems, which the Chinese government employs against the Uyghur Muslim minority in western Xinjiang province. While there are many distinctions between the United States and China, it is important to remember that when it comes to surveillance, the differences between the two countries are more legal and regulatory than technological.


Although Americans and its residents have better civil rights safeguards than Chinese citizens, we should be concerned about domestic law enforcement's use of surveillance technology. After all, government enforcement already uses facial recognition technology, and manufacturers have demonstrated interest in upgrading it in ways that could jeopardize civil freedoms.


According to Grand View Research, we should expect law enforcement to spend more on facial recognition. In 2018, the size of the government “facial biometrics” market was $136.9 million and is expected to be $375 million in 2025. 


The scale of law enforcement’s current use of facial recognition is larger than many realize. According to Georgetown’s Center on Privacy and Technology half of American adults are already in a law enforcement facial recognition network, and at least 26 states allow law enforcement to conduct facial recognition searches against driver’s license and other ID photo databases. 

The growing and widespread use of facial recognition is of particular concern given improvements in recognition technology and the private sector’s interest in making surveillance technology more invasive. 


In 2017, the law enforcement equipment manufacturer Axon released its technology report. The report includes the following quote form Captain Daniel Zehnder, former manager of Las Vegas Police Department’s body camera program:

[T]he fact that I could potentially walk down the street with a camera in real time, scanning faces, doing facial recognition while it’s recording, sending that data to the cloud for real‐​time analysis, have that data come back and somebody tell me, “That guy in the red hat, red shoes you just passed, he’s wanted for burglary” That type of real‐​time, big data analysis application would be huge. 

In 2016 the Department of Homeland Security (DHS) issued a solicitation, asking private companies to build them small, portable Border Patrol drones with facial recognition capability. DHS is also keen on facial recognition at airports. 


Facial recognition systems vary in accuracy. Last year, news that Amazon’s facial recognition tool had misidentified 28 members of Congress made headlines. Eleven of the misidentified members of Congress are African Americans, promoting more commentary about longstanding and established concerns associated with racial bias and facial recognition. Amazon responded that the test, performed by the American Civil Liberties Union, used a confidence threshold of 80 percent rather than the Amazon‐​recommended 95 percent. 


False positives are a worry, especially considering that police across the country could one day (without restrictions like those in Baltimore) be outfitted with body cameras capable of real‐​time facial recognition capability.Unnecessary harassment of law-abiding citizens and residents would not only waste time, but it would also undermine police-community ties. There would be severe difficulties even in a world where real-time facial recognition body camera technology is 100 percent accurate. Will protesters be more likely to congregate if they knew police with facial recognition body cameras would be present? What about people who go to religious events, gun exhibits, strip joints, or abortion clinics?


San Francisco officials are plainly concerned about monitoring, racial bias, and free expression. Face recognition is expected to be banned in San Francisco as a result of these concerns. Given the level of facial recognition technology and the potential for abuse, such a prohibition may be reasonable. However, we should consider whether any policies exist that would allow police to utilize facial recognition without jeopardizing civil liberties.


The following are the conditions that must be met for law enforcement to use face recognition technology:


— A prohibition on real‐​time capability: Facial recognition technology should be used as an investigative tool rather than a tool for real‐​time identification.


— Database restrictions: Law enforcement facial recognition databases should only include data related to those with outstanding warrants for violent crimes. Law enforcement should only be able to add data related to someone to the database if they have probable cause that person has committed a violent crime. Relatives or guardians of missing persons (kidnapped children, those with dementia, potential victims of accidents or terrorist attacks) should be able to contribute relevant data to these databases and request their prompt removal. 


— Open source/​data requirement: The source code for the facial recognition system as well as the datasets used to build the system should be available to anyone.


— Public hearing requirement: Law enforcement should not be permitted to use facial recognition technology without first having informed the local community and allowed ample time for public comment. 


— Threshold requirement: Deployment of facial recognition should be delayed until law enforcement can demonstrate at least a 95 percent identity confidence threshold across a wide range of demographic groups (gender, race, age, etc.).* 


Such standards would make facial recognition in law enforcement extremely unusual, if not nonexistent, which are bullets I'm ready to take. These conditions, however, are not a prohibition. Given the current state of affairs, a facial recognition ban seems reasonable in San Francisco. Many San Francisco citizens would be relieved by such a restriction, but we should analyze if prohibitions are the best facial recognition regulations.

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Numerous Big Tech businesses have dominated popular perceptions of disputes about internet commerce and speech. Google has joined the ranks of brands such as Xerox, Velcro, and Taser as a verb. Although the verb "to Facebook" has not yet entered the vernacular, Facebook remains the world's most popular social networking platform. Google, Facebook, and a slew of other Big Tech giants have come under fire for their acquisitions of smaller companies. Perhaps the most noteworthy instances are Facebook's acquisitions of WhatsApp and Instagram, as well as Google's acquisition of YouTube.

Rather than demonstrating monopolistic corporations consolidating their market dominance, these acquisitions demonstrate the breadth of markets in which Big Tech firms compete. Facebook, Google, Amazon, and Microsoft all make these acquisitions in order to compete. These companies compete fiercely in marketplaces for instant messaging apps, live streaming services, e-commerce platforms, video conferencing, and smart speakers, among others. Although offered as proof of monopolies arbitrarily selecting market winners and losers, the current state of affairs is one of healthy competition and innovation, and there is scant evidence that Big Tech mergers hurt consumer welfare, the antitrust enforcement standard.

Users gravitate toward Big Tech businesses not because they are the only options, but because they enjoy the products offered by Big Tech. Google, Facebook, and Amazon are not the only companies that provide online search engines, social media platforms, and ecommerce. These companies' acquisitions of smaller businesses have not resulted in anti-competitive pricing or product quality reductions.

Despite this, the DOJ's letter asserts that if Big Tech is left to its own ways, democracy would suffer. This is consistent with the concerns expressed by the "neo Brandeisian" movement, which is called after Supreme Court Justice Louis Brandeis. According to Brandeis and his disciples, firms with the size and power of those in the Big Tech club endanger democracy by controlling critical civic institutions.

However, history demonstrates that market dominance does not imply long-term economic monopoly power, let alone political authority. Indeed, if Google and Meta were the dominating actors in American politics, it is unlikely that politicians would have introduced the antitrust laws Hyun mentions. Today's neo Brandeisians are concerned about market concentration and are unwilling to argue that market dominance is earned by the provision of high-quality products. They are unconcerned about the concentration of power created by an emboldened DOJ and Federal Trade Commission aiming to break up or eliminate enterprises that provide popular goods and services.

Across the political spectrum, legislators and activists have raised worry about Big Tech's impact on democracy, notably on political speech and information access. There are also concerns about what Harvard professor Shoshana Zuboff refers to as "surveillance capitalism," an imprecise term that broadly refers to the business structures and practices used by Google, Facebook, and other Big Tech businesses to collect data about their customers and make money.

True, the leading social media platforms can be used to spread propaganda, disinformation, and radical political content. However, how antitrust enforcement might lessen the dangers connected with this content is unknown. Indeed, separating Instagram, WhatsApp, and Facebook would very certainly impede effective content moderation, given the fixed costs associated with investing in systems for screening out bad information.

For those pursuing antitrust enforcement, so-called "surveillance capitalism" creates significant concerns. Numerous large technology companies are popular as a result of the amount of data they collect about its users. While some may find Amazon's recommended purchases, YouTube's suggested films, and other tailored advertisements disconcerting, such issues are better addressed through privacy laws than through antitrust action.

There is few evidence to suggest that Big Tech is a threat to economic growth, much less democracy. Those motivated by such concerns should refrain from proposing laws that, if implemented, would harm some of America's most famous and successful businesses, as well as their customers.

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