Montana lawmakers are still not on the same page about how to regulate rapidly emerging facial recognition technology in the state as the 2023 legislative session approaches.
Some support a full moratorium on the technology, and others are looking to take a more nuanced approach by tweaking privacy guidelines and letting some agencies continue to use the technology in a limited scope. In the midst of the nearly year-long study and debate about the technology, one thing has become clear: it will be an issue brought up next session, but the chances a committee bill makes it out of the interim is unlikely.
“It is frustrating,” said Sen. Ken Bogner, R-Miles City, and chair of the Economic Affairs Interim Committee. “It’s most frustrating because the committee is mostly on the same page.”
Bogner and Rep. Katie Sullivan, D-Missoula, have spent a chunk of the interim working on a draft of a bill that would have put significant sideboards on the use of the technology in the state. For example, law enforcement would be allowed to use the technology if there’s a warrant and if it’s for a serious crime. The bill would have also allowed for agencies like the Motor Vehicle Division to keep contracting with a third-party company that uses the technology.
Generally, study bills gain traction less in the Legislature if they lack bipartisan support from interim committees. And with the two facial recognition technology bills battling it out in EAIC, it’s unlikely this late in the interim that one will make it out of committee with full support of the committee.
Last week, instead of taking up Bogner and Sullivan’s bill, the EAIC committee voted on a different bill. Proposed by Rep. Mark Noland, R-Bigfork, that legislation would have essentially banned the technology in the state.
Noland’s bill caught some lawmakers flat-footed, as the majority of the interim has been spent gathering feedback from stakeholders and the public about Bogner and Sullivan’s bill.
“Noland’s bill took the committee by surprise .. in my caucus, I knew that all but maybe one were going to vote for it,” Bogner said. The bill ultimately failed to move out of committee on a tie vote.
In a phone interview, Noland defended his bill, saying out of the two bills, it does the most to protect the privacy of Montanans.
“My reasoning is I want to protect the integrity of our privacy … facial recognition technology has the potential to let any company that monitors those kinds of things have access to you, me, my mom, grandmas, kids … I want to protect that at all costs,” he said.
During the 2021 session, an effort by Sullivan to establish a policy for the use of facial recognition technology by state agencies in Montana failed. But the legislature recognized the importance and directed the issue to be studied by the EAIC during the interim leading up to the next legislative session.
In Montana, three agencies currently use the technology:
- Department of Corrections for identity verification for remote alcohol monitoring
- Department of Labor & Industry for identity verification for unemployment insurance
- Department of Justice for identity verification for drivers licenses
For now, Bogner and Sullivan said they will continue to tweak their bill ahead of the committee’s September 13 meeting.
“I don’t think either bill is ready. I think the version Ken and I worked on is very close. We have really communicated with all the law enforcement and county attorneys. They are not super excited about it, but they are aware of it, and we have come to compromises,” Sullivan said. “We have talked to the tech companies and have come to plans with them, so we don’t disrupt services they provide to Montanans.”
While a bill will be brought forth next session, Bogner said it helps to have a bill come out of committee with bipartisan support.
“I know when we are in the regular session, you look to see how (bills) came out of committees, and if it’s 6-4 or even 7-3, you start asking questions,” he said. “Legislators want to know why something was a close vote on a committee when they had time to study.”
Sullivan had the same message. “I want to come in with a bill that has broad bipartisan support that the agencies can come in and say they have been working on this.”