Washington State Adopts Legislation Regulating, Restricting Facial Recognition Use

The law, which will go into effect next year, will require law enforcement to use facial recognition software only to investigate serious crimes and issue public accountability reports.

• By Haley Samsel
• Apr 02, 2020

On Tuesday, Washington Gov. Jay Inslee signed into law new regulations on how facial recognition software can be used in the state.

Rather than prohibiting all government or private use of facial recognition technology, as some cities and communities across the country have done, the Washington legislation bans facial recognition for use of “ongoing surveillance.” Once the law goes into effect next year, law enforcement will be able to use the software only to acquire evidence of serious crimes following the issuance of a search warrant.

The legislation, which passed the state legislature on March 12, also requires public agencies to issue accountability reports on facial recognition use and conduct tests on the software’s accuracy, addressing concerns from civil liberties advocates who point out that facial recognition software has been proven less accurate overall for people of color, women and transgender people.

“Right now, we have seen this technology already being used without much concern for the moral implications that are associated with it,” said state Sen. Joe Nguyen, a Democrat who sponsored the core legislation, Senate Bill 6280. “This bill will change that, and ensure that facial recognition isn’t being used unless there are regulatory checks and balances.”

Public agencies must also have a human review the software’s results if there are “legal effects” of it finding a match, such as results affecting someone’s job, housing, insurance, education and more.

“Now is the time to really work on this and find ways to root out the bias, so people across the country can be protected from unnecessary and intrusive surveillance,” Nguyen said.

The law was opposed by the American Civil Liberties Union and the Washington Association of Sheriffs & Police Chiefs for “essentially opposite reasons,” according to BiometricUpdate.com. Private use of facial recognition was not addressed in the legislation, and Inslee vetoed a section on studying potential abuses of the software, citing budget concerns.

Microsoft, a facial recognition software provider, was one of the bill’s key supporters. (Nguyen is a Microsoft employee as well as a member of the legislature). The company’s president, Brad Smith, penned a blog post on Tuesday celebrating Washington’s “significant breakthrough” in becoming the first state or nation to pass a law “devoted exclusively to putting guardrails in place” for the use of facial recognition.

“Washington state’s new law breaks through what, at times, has been a polarizing debate,” Smith wrote. “When the new law comes into effect next year, Washingtonians will benefit from safeguards that ensure upfront testing, transparency and accountability for facial recognition, as well as specific measures to uphold fundamental civil liberties.”

Smith added that law enforcement will still be able to use the software and image databases to identify missing persons and to “keep the public safe,” but without violating human rights. He hopes that Washington’s new set of regulations will serve as a model to other states grappling with how to handle facial recognition and its growing use by law enforcement and security operations.

“Finally, a real-world example for the specific regulation of facial recognition now exists,” Smith wrote. “Some will argue it does too little. Others will contend it goes too far. When it comes to new rules for changing technology, this is the definition of progress.”