After Black Pregnant Woman's False Arrest, Markey Renews Call for Federal Facial Recognition Ban

In response to reporting about an innocent Black woman misidentified as a criminal suspect by facial recognition software and arrested in Michigan, U.S. Sen. Ed Markey on Monday demanded federal legislation he first proposed years ago.

The New York Times detailed Sunday that Porcha Woodruff was eight months pregnant and getting her daughters ready for school in February when members of the Detroit Police Department (DPD) arrested her for alleged robbery and carjacking. The 32-year-old was held at the Detroit Detention Center for 11 hours, after which she required hospital treatment for dehydration. The case against her was dismissed, but on Thursday she filed suit against the city and Detective Officer LaShauntia Oliver in the U.S. District Court for the Eastern District of Michigan.

"In the warrant affidavit, Detective Oliver omitted the fact that [Woodruff's] facial recognition was eight years old, and [Woodruff's] recent driver's license photo was available," the suit states, according to The Detroit News. "[Oliver] deliberately omitted facts because the magistrate would have possibly denied the warrant. The omitted facts were material in finding probable cause to obtain a warrant affidavit for [Woodruff's] arrest."

Responding on social media, Markey (D-Mass.) said: "Unacceptable. Facial recognition frequently misidentifies vulnerable and marginalized people. We need to pass my bill to prohibit the use of biometric technologies by federal entities and law enforcement so that people like Porcha aren't wrongly accused."

Markey and Sen. Jeff Merkley (D-Ore.) along with Reps. Pramila Jayapal (D-Wash.) and Ayanna Pressley (D-Mass.) first introduced the Facial Recognition and Biometric Technology Moratorium Act in 2020. In March, they reintroduced the bill with Rep. Rashida Tlaib (D-Mich.) as well as Sens. Bernie Sanders (I-Vt.), Elizabeth Warren (D-Mass.), and Ron Wyden (D-Ore.).

"The year is 2023, but we are living through 1984. The continued proliferation of surveillance tools like facial recognition technologies in our society is deeply disturbing," Markey said at the time, referencing George Orwell's dystopian novel. "Biometric data collection poses serious risks of privacy invasion and discrimination, and Americans know they should not have to forgo personal privacy for safety. As we work to make our country more equitable, we cannot ignore the technologies that stand in the way of progress and perpetuate injustice."

According to his office, the bill would:

• Place a prohibition on the use of facial recognition technology by federal entities, which can only be lifted with an act of Congress;
• Place a prohibition on the use of other biometric technologies, including voice recognition, gate recognition, and recognition of other immutable physical characteristics, by federal entities, which can only be lifted with an act of Congress;
• Condition federal grant funding to state and local entities, including law enforcement, on those entities enacting their own moratoria on the use of facial recognition and biometric technology;
• Prohibit the use of federal dollars for biometric surveillance systems;
• Prohibit the use of information collected via biometric technology in violation of the act in any judicial proceedings;
• Provide a private right of action for individuals whose biometric data is used in violation of the act and allow for enforcement by state attorneys general; and
• Allow states and localities to enact their own laws regarding the use of facial recognition and biometric technologies.

Experts and rights advocates have long warned about the inaccuracy and biases of facial recognition technology and raised the alarm about its use by all levels of law enforcement.

While some states and municipalities have passed restrictions on such technology, there are no federal regulations—though experiences like that of Woodruff have fueled demands for swift and sweeping action by the divided Congress.

According to the Times:

The ordeal started with an automated facial recognition search, according to an investigator's report from the Detroit Police Department. Ms. Woodruff is the sixth person to report being falsely accused of a crime as a result of facial recognition technology used by police to match an unknown offender's face to a photo in a database. All six people have been Black; Ms. Woodruff is the first woman to report it happening to her.

It is the third case involving the Detroit Police Department, which runs, on average, 125 facial recognition searches a year, almost entirely on Black men, according to weekly reports about the technology's use provided by the police to Detroit's Board of Police Commissioners, a civilian oversight group. Critics of the technology say the cases expose its weaknesses and the dangers posed to innocent people.

In a statement to multiple media outlets, DPD Chief James White said: "I have reviewed the allegations contained in the lawsuit. They are very concerning. We are taking this matter very seriously, but we cannot comment further at this time due to the need for additional investigation. We will provide further information once additional facts are obtained and we have a better understanding of the circumstances."

Another incident involving the city's police landed Robert Williams behind bars in January 2020, after state-owned facial recognition software misidentified the Black Michigander as a shoplifting suspect. He is represented by the national and state ACLU as well as the University of Michigan Law School's Civil Rights Litigation Initiative in an ongoing legal battle.

"It's deeply concerning that the Detroit Police Department knows the devastating consequences of using flawed facial recognition technology as the basis for someone's arrest and continues to rely on it anyway," Phil Mayor, senior staff attorney at the ACLU of Michigan, said in a statement Sunday as news outlets shared Woodruff's story.

"As Ms. Woodruff's horrifying experience illustrates, the department's use of this technology must end," Mayor continued. "Furthermore, the DPD continues to hide its abuses of this technology, forcing people whose rights have been violated to expose its wrongdoing case by case. DPD should not be permitted to avoid transparency and hide its own misconduct from public view at the same time it continues to subject Detroiters to dragnet surveillance."

The ACLU was among the groups that endorsed Markey's legislation in March, with senior policy counsel Chad Marlow saying the senator "understands Congress should not be using federal funds to underwrite the use of technologies that threaten our most sacred civil rights and civil liberties" and applauding all of the bill's sponsors for working to safeguard "our freedoms against the prying eyes of unchecked government surveillance."