Microsoft and Amazon are at the center of an ACLU lawsuit on facial recognition

The launch of Windows Azure, with its logo shown on a screen, is announced by Chief Software Architect at Microsoft Ray Ozzie at the 2008…
The launch of Windows Azure, with its logo shown on a screen, is announced by Chief Software Architect at Microsoft Ray Ozzie at the 2008…
Image: Reuters/Windows Azure
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The American Civil Liberties Union (ACLU) is pressing forward with a lawsuit involving the facial recognition software offered by Amazon and Microsoft to government clients.

The civil rights organization last week (Oct. 31) sued the US Justice Department, the Federal Bureau of Investigation (FBI), and the Drug Enforcement Administration (DEA) for documents related to their use of surveillance technology. In a complaint filed in a Massachusetts federal court, the ACLU asked for a variety of different records from the government, including inquiries to companies, meetings about the piloting or testing of facial recognition, voice recognition, and gait recognition technology, requests for proposals, and licensing agreements.

At the heart of the lawsuit are Amazon’s Rekognition and Microsoft’s Face API, both facial recognition products that are available for customers of the companies’ cloud platforms. The ACLU has also asked for more details on the US government’s use of voice recognition and gait recognition, which is the automated process of comparing images of the way a person walks in order to identify them. Police in Shanghai and Beijing are already using gait-analysis tools to identify people. Microsoft and Amazon weren’t immediately available to comment.

“This should include any communications or inquiries about potential use, pilot or purchase of Rekognition, Face API, or other face recognition technology and services from Amazon and Microsoft, as well as any communications or inquiries about potential use, pilot or purchase of facial, gait, or voice recognition technology or services from other companies,” the ACLU wrote in the lawsuit.  

The three agencies involved in the lawsuit have yet to respond to a Freedom of Information Act (FOIA) request the ACLU filed in January which requested the same documents. 

“The government has not disclosed which companies are providing these dystopian tools to spy on the public. Given the mounting evidence that these tools don’t work as pitched and threaten our privacy rights and civil liberties, the public deserves full transparency. That’s why we’re asking a court to intervene and order the government to come clean,” Kade Crockford, director of the Technology for Liberty Program at the ACLU of Massachusetts, said in a statement to Quartz.

Critics of facial-recognition tools say that the existing technology is too flawed to be used by governments. In fact, studies of both Rekognition and Face API found that both tools are biased against those with darker skin, women, and non-binary and transgender individuals. Microsoft did roll out an update to Face API last year that it claimed reduced error rates as much as 20 times for individuals with darker skin and by nine times for all women.

Last month, the ACLU tested Rekognition, running pictures of 188 NFL athletes through a mugshot database, and found that it misidentified 28 of them as criminals. Amazon has since rebuked the ACLU study, arguing that it recommends that law enforcement agencies apply a higher confidence rate (99%) when using the software than the 80% confidence rate used in the study.  Amazon has drawn criticism from privacy advocates for its marketing of Rekognition for law enforcement. A recent ABC News 7 investigation found that Amazon was pushing police departments to use Rekognition along with Amazon’s Ring security cameras.

Both Microsoft’s Azure Government and Amazon Web Services have contracts to provide cloud services to all 17 US intelligence agencies. Back in November 2017, AWS created a secret cloud computing region that would allow members of the intelligence community to perform classified work. In May of 2018, Microsoft secured a deal that would allow 17 intelligence agencies, including the FBI, CIA, and NSA, to use Azure Government. Microsoft also has a $19.4 million dollar contract with Immigration and Customs Enforcement (ICE), which sparked employee protests this summer. In a subsequent internal memo, the company insisted that its ICE contract only involved providing email and other office support services to the agency. The software giant last month signed a $10 billion dollar deal with the US defense department to provide cloud-computing, beating out AWS. 

“As an American company, we’re not going to withhold technology from the institutions that we have elected in our democracy to protect the freedoms we enjoy,” Microsoft CEO Satya Nadella recently told Quartz. “That’s something that is a principled stance we have taken, and we are very transparent about it.”

Both AWS and Azure are crucial to the success of both tech giants. In 2018, Amazon brought in $25.7 billion in revenue from its cloud-computing division, a higher figure than McDonald’s entire bottom line. For the third quarter of 2019, AWS revenue came in at $8.38 billion, a 37% rise from last year. Microsoft’s cloud computing division recorded revenue of $10.8 billion in the third quarter, only slightly less than what the software giant generated from personal computers ($11.1 billion).

Update: Story has been updated to include Amazon and Microsoft’s responses.