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Once little-know data-analysis office in DHS gets heat about facial recognition

Facial recognition was part of the text and subtext of a U.S. Senate intelligence committee hearing last week.

The hearing was called to interview a candidate — Kenneth Wainstein — to lead Intelligence and Analysis, an obscure office in the sprawling Homeland Security department.

The office, known as I&A in the Capitol, analyzes open-source information for threats and dangerous patterns. The FBI, with which the office can collaborate, seeks data from private and open sources.

Committee member Senator Kirsten Gillibrand (D-N.Y.) point blank asked Wainstein if he would commit to reporting on I&A’s collection, retention and exploitation of data derived from facial recognition, including all relevant contractors it hires. Gillibrand is sharpening her focus on data privacy generally.

He agreed without qualification.

In written testimony to the committee, Wainstein said he saw the I&A operating under “a dual mission of protecting both national security and civil liberties.” It would not succeed unless its staff could balance the missions.

(On the state level, New Jersey’s acting attorney general is looking for enlightenment on this balancing act by inviting residents to post their thoughts on the state’s web site.)

Gillibrand said the federal government continues to expand the roles of facial recognition systems and who can wield them.

Wainstein told the panel that while he has a long history of working in law enforcement sections of the federal government, he most recently was working as an attorney in the private sector and, so, was not deeply informed about the ethics of facial recognition.

He said he is aware of bias concerns and would implement careful safeguards for any operations that involve facial recognition.

The topic is not a side track for I&A. Indiscriminate use of cameras pointed at people in public, semi-public and private places is growing, and making activists out of citizens who feel tracked for no legitimate reason. Others feel their biometric identifiers, including their faces, are captured for unknown purposes without consent.

The subtext was at least as interesting.

Senator and New Mexico Democrat Martin Heinrich dug into a controversial surveillance provision of the 2001 Patriot Act, which despite not directly mentioning facial recognition, raised data-collection concerns that persist today.

Section 215 of the act allowed the federal government to petition a judge for court orders to seize “tangible things” while cloaking the entire process — from rationalizing a request, to the actual petition and decision, to assets collected and how they were gathered. The provision has been changed over time, but it is unclear if any significant powers have been dropped in the Homeland Security department.

Wainstein said that Section 215 was “difficult and fraught.” Wholesale collection of data from countless innocent people, legal under the section, is unpopular with many of the people who vehemently disagree with letting the government surveil through indiscriminate facial recognition.

Wainstein admitted that aggressive data harvesting can be a necessary and effective tactic in some circumstances.

Criminal grand juries have wide latitude to subpoena while national security agencies lack comparable tools to gather evidence.

Nor do I&A staff universally have the training and guidelines to ethically use AI and machine learning to sift through petabytes of biometric and demographic data to produce suspects, something he said he would remedy.

“You have to be very careful about hoovering up everything about (innocent) people,” he said. “It’s a real challenge.”

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