- The Washington Times - Tuesday, October 27, 2020

Facial recognition technology, warrantless searches of cellphones and replacing bail with algorithms are on ballots in states across the country.

Voters from California to Maine will decide several of the most contentious issues in technology policy and chart a path forward for life on the internet.

In California, Proposition 25 would allow voters to dramatically overhaul their criminal justice system and replace human judgment with the input of machines. A “yes” vote would replace the state’s monetary bail system with a risk score generated by a computer algorithm that helps decide which defendants walk free without having to pay bail before trial, according to the California secretary of state’s website.

A computer would help decide whether to release those accused of crimes. The decision would be based on a calculated risk of their likelihood to commit another crime and their likelihood to skip a court appearance.

“The assessment tools shall be demonstrated by scientific research to be accurate and reliable in assessing the risk of a person failing to appear in court as required or the risk to public safety due to the commission of a new criminal offense if the person is released before adjudication of his or her current criminal offense and minimize bias,” the California voter guide says.

Exactly how California intends to develop the algorithms and “risk assessment tool” is not clear.

The computer would provide each defendant with a risk score, but a judge would still make the decision whether to jail or free the person pending trial.

Such a system could end up incarcerating more people — not less, said Arthur Rizer, director of criminal justice and civil liberties at the R Street Institute, a libertarian think tank in Washington.

“In terms of the underlying law, I think it’s well-intended, not well-drafted,” Mr. Rizer said. “The cash bail status quo in California wasn’t great, but … [this] may create some unintended consequences.”

Mr. Rizer said the proposition approaches the issues of cash bail and criminal risk assessments as two sides of the same coin, but he thinks the issues are different.

The contentious issues have created some strange factions. The California State Conference of the NAACP opposes the proposal, and the Service Employees International Union in California supports it.

Jonathan Underland, a spokesman for the Yes on 25 campaign, said the existing system of cash bail is deeply racist and has created an environment of over-incarceration that needs to be abolished immediately.

“Californians want a system based on fairness, not based on the size of anyone’s wallet,” Mr. Underland said.

In Michigan, voters will have the opportunity to curb law enforcement’s powers to access people’s electronic data without a warrant.

Ballot Proposal 20-2 asks whether the Michigan Constitution should be amended to require a search warrant to access electronic data and electronic communications. The proposal would set up a system to obtain electronic data similar to what is needed for the government to search a person’s house and apply protections against unreasonable search and seizure of personal electronic data.

Ashkhen Kazaryan, director of civil liberties at libertarian-minded TechFreedom, said she thinks the proposal should serve as a model for the country.

“Our electronic information and communications should be protected as much as physical letters,” she said. “It is 2020, and the fact that an immense amount of warrantless searches of our information occurs is unacceptable.”

Opponents say the amendment would be redundant because law enforcement already obtains warrants or subpoenas in most cases before accessing electronic data and new restrictions could interfere with cybercrime investigations.

Voters in Portland, Maine, will decide whether the city government can use facial recognition technology.

Question B, a referendum on Portlanders’ ballots, asks voters whether they support a city ordinance that bans facial surveillance by public officials, prevents the city from using facial surveillance software and gives the public a right to sue if the facial surveillance data is collected or used illegally.

The city ordinance passed unanimously this summer. It was drafted by City Councilor Pious Ali, a Democrat, in consultation with the American Civil Liberties Union, according to the Portland Press Herald.

Similar bans have been enacted in California cities San Francisco and Oakland and in the Massachusetts cities of Boston and Somerville. Like Portland, the Boston City Council voted to ban facial recognition technology this summer.

The liberal push in opposition to facial recognition technology gained momentum from racial justice protests this summer. Proponents of the Boston ban pointed to studies showing that the technology had greater errors for people of color.

Mr. Rizer said he has witnessed a “pretty dramatic change” in voters’ attitudes toward facial recognition technology since the civil unrest and summer protests that followed the death of George Floyd while in the custody of Minneapolis police in May.

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