To Protect Montanans’ Privacy, We Must Address Facial Recognition Technology

Our rights to not have our property or persons searched or seized without a warrant, to not be harassed by the government without good reason, and to conduct our own peaceful affairs with minimal intrusion are increasingly challenged by new technology. Our smartphones track our every movement, many personal conversations happen through electronic communications, and our health and financial data are increasingly stored on devices and in the cloud.

These digital records have become so involved in every aspect of our lives that we have essentially created an entire digital version of ourselves as individuals. That’s why the Montana Legislature has passed several laws in recent years to safeguard people’s digital information. To get access to someone’s location via their cell phone, the government needs a warrant. Same thing if the government wants access to your text messages or your computer. The media’s electronic communications are off-limits to the government so the press can perform its essential watchdog role for the people without Big Brother’s interference. All these protections for our digital information have been passed and signed into law in Montana. Voters will also have an opportunity to weigh in on this topic directly through a proposed constitutional amendment that I was able to get placed on the 2022 ballot.

But now, the line between our digital selves and our physical selves is getting blurry. Voice-activated devices can place orders for us. Smartwatches can read our pulse and feed the data to an algorithm that analyzes our health. Ancestry companies hold records of customers’ DNA and compare them to others in a vast database. And facial recognition technology is becoming more powerful and more widespread.

We don’t have to imagine what unchecked use of facial recognition might look like because China is already showing us. The ruling Chinese Communist Party (CCP) claims its facial recognition system could scan the faces of China’s 1.4 billion citizens in just one second. The CCP is using facial recognition to track the movements of 11 million citizens who are part of an ethnic minority that it is oppressing, detaining, and abusing. The technology is central to China’s mass surveillance state.

In the United States, facial recognition technology is increasingly being used by law enforcement and other government agencies for a variety of purposes. Montana’s Frontier Institute confirmed through public record requests that several Montana government agencies have used facial recognition, although to what extent is not fully clear. Individuals frequently use the technology to unlock smartphones and tag friends in social media photos. Like any technology, facial recognition is a tool, and it can be used for good and bad.

The Legislature must address facial recognition to ensure Montanans can use the technology without sacrificing our privacy and our rights. As digital privacy has been a bipartisan issue in Montana, biometric privacy should be as well. Currently the Legislature’s Economic Affairs Interim Committee, which I chair, is studying the issue.

We plan to bring legislation to the next session in 2023 addressing facial recognition technology. Throughout this year we’ll be taking input from Montanans on what that legislation should look like. If you have ideas on how facial recognition should or should not be used in the Last Best Place, please get in touch with us. Our contact information, schedule, and more information are all available on the Legislature’s website under the Economic Affairs Interim Committee.

Sen. Ken Bogner, R-Miles City, is the chairman of the Montana Legislature’s Economic Affairs Interim Committee