On January 17, 2023, the BBA Council voted to endorse a set of principles recommending guardrails on government use of facial surveillance technology. These principles, developed by members of our Criminal Law, Civil Rights and Civil Liberties, and Privacy and Cybersecurity Sections, build on a report published in 2022 by the Massachusetts Special Commission on Facial Recognition.
The BBA concurs with the Commission’s concerns for constitutional due-process rights of individuals regarding the use of this technology, but also emphasizes that there are many other rights relevant to the use of face surveillance, particularly if/when search results are used in criminal prosecutions. Our principles recommend that limitations be placed on the use of facial-recognition systems, but state that any legislation should further clarify that access to the technology by law enforcment can be expanded only by the Legislature. The principles also concur with the Commission that no technology authorized for law enforcement use should allow for “emotion recognition, surveillance and tracking,” as failure to do so risks unleashing a regime of unlimited generalized surveillance.
