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The long-simmering debate over facial recognition technology is taking on new urgency during the pandemic, as companies rush to pitch face-scanning systems to track the movements of Covid-19 patients.

That’s playing out in California, where state legislators on Tuesday will debate legislation that would regulate the use of the technology. Its most controversial element: It would permit companies and public agencies to feed people’s facial data into a recognition system without their consent if there is probable cause to believe they’ve engaged in criminal activity. The bill isn’t specifically meant for the coronavirus response, but if enacted, could shape the way that people with Covid-19 and their contacts are tracked and traced in the coming months.

The legislation has won the support of Microsoft, but it has garnered opposition from more than 40 civil rights and privacy groups and from 18 public health scholars.


“This bill threatens to further entrench inequity and divert money from vital public health resources while ushering in a nightmarish future of unprecedented biometric surveillance,” according to a letter dated on Friday and signed by professors of law, medicine, and other fields from around the country. “Facial recognition is not the solution to this public health crisis.”

Face-scanning systems are already in use or under consideration in the coronavirus response. Tampa General Hospital in Florida recently implemented a screening system that includes thermal-scanning face cameras made by Orlando, Fla.-based company The cameras look for fevers, sweating, and discoloration. Texas-based Athena Security has been pitching a similar product to grocery stores, hospitals, and voting locations.


And last week, the CEO of New York-based Clearview AI, Hoan Ton-That, went on television to boast that his company is in discussions with unnamed federal and state agencies to use its facial-recognition technology to help trace Covid-19 patients and their contacts. The company already markets a tool to law enforcement that allows a suspicious face from video evidence to be run through Clearview’s system database of public images to see if there’s a match.

Even before the pandemic, facial recognition technology — which encompasses efforts to use artificial intelligence and other automation to identify people by comparing multiple images — had been controversial. Critics see it as a dystopian invasion of privacy that comes with worrisome biases. Research has shown the systems are less accurate in recognizing the faces of people of color and come with risk that they may be deployed disproportionately in marginalized communities.

In recent months, state and local lawmakers around the country have begun passing legislation meant to regulate such systems — though the approaches to doing so are disparate. Last year, San Francisco; Oakland, Calif.; and Somerville, Mass., banned the use of such technology in public spaces. And this spring, Washington state adopted a law, also backed by Microsoft, allowing government agencies to deploy facial recognition with certain limitations.

The California legislation is more expansive; according to a nonpartisan analysis of the bill, it would be the first in the country to “comprehensively regulate the use of FRT across both public and private sectors.”

The legislation was first introduced in mid-February by Ed Chau, a Democrat representing a district just east of Los Angeles.

The bill requires people to consent to have their facial data fed into a recognition system, with the exception of circumstances in which there is “probable cause” that they have committed or tried to commit a serious crime. The legislation also places broad limits on how those facial data are used and stored, such as by requiring audits and accountability reports.

In a supportive statement in the bill analysis, Microsoft said the legislation took a “a thoughtful approach which recognizes the need for safeguards to balance the opportunities and the risks associated with facial recognition technology.”

By contrast, the groups fighting the bill — which include the American Civil Liberties Union and its California chapters, Electronic Frontier Foundation, and California chapters of the NAACP — said in their opposition statement that the legislation “will exacerbate the racial, gender, and socioeconomic inequities the pandemic has exposed.” They added: “We should not be giving companies and governments a green light to use facial recognition to track individuals, deny economic opportunities, and further marginalize communities.”

The bill is slated to be debated on Tuesday by a committee of the assembly focused on privacy and consumer privacy.

Neither Chau nor Microsoft immediately returned STAT’s request for comment on Tuesday morning.