Facial recognition regulation: AB 2261 offers flimsy protections

As more companies use facial recognition systems to analyze and grade your facial movements, eye contact and smile, concerns grow stronger with the need to regulate such invasive technology. 

While it purports to be privacy-protective, Assembly Bill 2261, which is backed by Big Tech and strongly opposed by civil rights and labor organizations, gives companies extraordinary leeway to use these systems to deny people jobs and financial services, or charge higher premiums for health insurance. 

The economic risks posed by facial recognition technology aren’t theoretical. More and more companies, including major employers like Hilton and Unilever, are using facial recognition technology to make hiring decisions. Their systems grade your facial movements to generate a pseudoscientific “employability” score that can determine if you get the job. 

It’s not just employers using this technology. Banks and insurers are rolling out these facial recognition systems to determine how much you pay for health insurance or if you qualify for a loan. Banks claim their face scans can determine honesty and trustworthiness by scanning for “suspicious” facial expressions.

Meanwhile health insurers are using their facial recognition tools to charge overweight customers higher premiums.  Researchers call these technologies “digital snake oil” and a “license to discriminate” because there’s no scientific evidence that facial expressions can predict job performance, health or creditworthiness. 

What’s more, these systems can penalize people who are from different cultures, or are simply nervous about having their face scanned and judged by an algorithm. 

The regulations in AB 2261, which is up for consideration by the Assembly Appropriations Committee this week, are mere formalities that tech and surveillance companies can easily bypass. 

If this bill passes, these companies will see this law as an invitation to stay the course. They will keep building and selling facial recognition systems to our detriment. They will double-down on their plans for a future in which facial recognition technology can hold sway over critical decisions that shape our lives – including whether we’re turned down for jobs, denied loans, faced with unnecessary legal fees, charged more for insurance, and even excluded from businesses and essential services. 

Californians are facing huge economic losses right now. As counties begin to reopen, lawmakers must address the economic strain the COVID19 pandemic has put on our communities and the growing financial crisis their constituents have had to endure. Lawmakers must prioritize legislation that protects their ability to recover financially, not bills that allow massive corporations to deploy barriers to employment and financial stability. 

While we work to recover from layoffs, interrupted work schedules and lost income, AB 2261 would allow companies to push harmful technologies deeper into our lives without ensuring that they even work properly. 

This bill does not require facial recognition companies to actually test if their systems are accurate and fair – instead passing that responsibility to unspecified “third parties.” We need much more than these flimsy protections as facial recognition technology increasingly acts as a gatekeeper to jobs, health care and economic opportunity. 

In a moment when so many of us are struggling, economic discrimination via facial surveillance is the last thing we need. Our legislators should vote no on AB 2261. 

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Vinhcent Le is a Technology Equity Attorney at the Greenlining Institute, vinhcentl@greenlining.org. He wrote this commentary for CalMatters.