The Volokh Conspiracy

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Why you should want the IRS to use facial recognition technology

An op-ed from the Washington Post


Here are excerpts from my op-ed in today's Washington Post on the controversy over IRS use of face recognition:

The plan sent Congress into a tizzy. Sen. Ron Wyden (D-Ore.) complained that "many facial recognition technologies are biased in ways that negatively impact vulnerable groups, including people of color, women, and seniors." Fifteen Republican senators objected that the face recognition system threatened to make taxpayers "pay the toll of giving up their most personal information, biometric data."
Cowed by the accusations of bias and privacy, the IRS announced that it will "transition away" from face recognition. But both accusations are false, and the price that you and I will pay for this panicky retreat is enormous.

Wyden wants the IRS to switch to "verification by humans." Talk about lose-lose. At this point, the technology is much better than humans: Even human "super-recognizers" can't beat the algorithms. Their best accuracy rates are around 95 percent, well behind today's machines, and ordinary mortals, with an error rate of about 81 percent, aren't even close. They will almost certainly show more bias, too; humans are notorious for having trouble recognizing people outside their ethnic group.

Meanwhile, taxpayers would get worse service that costs more. If you've flown home from overseas in the past few years, you've probably skipped the customs line served by a human officer and headed straight for a kiosk that uses face recognition to match you to your passport. And I'll wager money you never want to go back to the old system.

But when it comes to protecting yourself from identity theft, that's exactly what the bipartisan critics in Congress want the IRS to do to you. Instead of a quick, automated process, you will wait on the phone to be verified by a human being. That human being will be working for the same understaffed IRS that has not even gotten around to opening and logging all the returns it received in the mail nearly two years ago.

But that's what's in store for all of us if the bipartisan group of congressional critics gets its way. If it's any consolation, we probably won't be on hold for the whole two years.

But it sure will feel that way.

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  1. My concern was mainly about giving personal information to a private company. If we had an enforceable guarantee that the information will only ever be used to authenticate IRS interactions, backed by the ability of wronged individuals to impose cruel and unusual punishment on company employees, then I'd be less worried.

    1. I think that it was worse here. They required personal information in order to verify your identity, including SS#, DL#, credit report, etc, then reserved the right to share that information with their partners. Maybe it was completely innocuous, but one of their partners was surely the IRS. Possibly the entire federal govt. how about someone like Amazon? If they had at least tried to construct a wall between our demographic data, our facial information, and both the government and other companies. Imagine walking down the street, and every time your face is recognized, up pops your name, SS#, DL#, family members, spending patterns, etc. Or, you walk through a mall, and private companies, paying to be partners, use that information to tailor ads specifically to you, etc.

      My biggest problem then was not with using facial recognition, per se, but rather that there were minimal attempts to protect your personal information from the government, and other companies.

  2. This post greatly misunderstands what people want out of the IRS (and also the ATF). They want it to not exist at all. The next best thing to a non-existent IRS is an incredibly inefficient and ineffective one.

    Income taxes are regressive and punish productivity and work. I know, we need to fund all that inefficient government so that we can wealth transfer ourselves to prosperity. Because that works.

    1. Do you think that about Border Patrol or the DOD?

      1. I can only speak for myself, but border patrol is much more important.

        1. Uh, who gets the funds to pay the border patrol?

          1. The Sixteenth Amendment was not passed until 1909, or ratified until 1913.

            1. Some agency collected revenue, the government wasn't funded on bake sales.

              1. Not directly from the citizens of the US. Most revenue to the federal government were derived from external sources, primarily tariffs.

                1. Importers are citizens too, and then those were passed on to other citizens in prices

          2. People who care about border patrol can donate money. If there's not enough money, less border patrol. Repeat for everything government does (except the IRS, remove that wholesale). Tada, we get the government we actually want enough to pay for.

      2. Sad that you are so economically and fiscally illiterate. Transfer payments like medicare, social security, medicaid are what drives the budget.

        1. What does that have to do with anything?

    2. People want that in the same way that a four year old wants a diet of nothing but cookies, candy, and ice cream, meaning that if they ever actually got it, they would soon find out that it wasn't as great as they thought it would be.

      No taxes means no basic services. We can quibble about whether this or that specific government function is good policy, but closing it down altogether?

      1. Who said "no taxes"? Gigantic straw man, Wicker man sized. Change us all over to a simple sales tax (Fair tax) and an income tax would be unnecessary, hence no need for a gigantic IRS.

        1. And who would collect the sales tax? You'd still need the IRS or some other collecting agency to collect whatever taxes there are. No IRS means no revenue.

          1. Yes, but sales taxes are far less intrusive into one's personal and business information than sales taxes.

            Compare even the simplest tax return to what is reported to the tax authorities on a sales transaction. Let alone complex income tax returns.

            1. meant to say ". . . than income taxes."

            2. The only reason income tax is so intrusive is because its at a relatively high level, and people seek to avoid it. The vast majority of the intrusion is to check and double check that people are paying what they otherwise would be seeking to avoid.

              Sales tax is mostly at a low level (<10%) and for the most part, people don't try to avoid it. The states don't go after individual people for sales tax avoidance (companies are a different category). If you increase sales tax to the levels needed to compensate for the income tax, you'll see a lot more tax avoidance, and with that, a need for increased intrusion to check for it.

              1. No, that is not the only reason. The income tax requires a detailed accounting of each individuals financial transactions during the year, with numerous credits and deductions. A sales tax does not.

                No doubt if we went to a sale tax (or VAT) tax system, there would be increased evasion. But the amount and detail of information about each person the tax authorities would collect would be far smaller.

                1. Depends how its instituted.

                  The income tax requires a detailed accounting of your income sources. Deductions are your choice of course, but most people choose to add them in. That's double checked against the income paid out in wages, interest, etc. The IRS gets both sides, so it can double check

                  If a sales tax was implemented in the same way, each individual would have to report their individual purchases, and that would be double checked against the selling organization. That could be far more intrusive, depending how its done.

                  Right now, Sales tax works relatively painlessly, because people don't pay it...the stores collect and pay it. But if there was increased evasion, the same sort of "double check" may be needed, which would increase the intrusion level significantly.

                  1. Its very hard to avoid the sales tax unless you pay cash. Businesses are much easier to audit.

                    South Dakota v. Wayfair eliminated a lot of the arguments against federal sales tax because now business are required to collect and remit sales tax for all states. Software makes it pretty straightforward.

                    The real opposition to the sales tax is not implementation difficulty, or theoretical economics. Its practical: the government never eliminates a tax. In other words, there is widespread skepticism that Congress would really eliminate the income tax.

                    1. Your last paragraph hits the nail on the head.

                    2. No, Don, it's the economics.
                      A sales tax discourages consumption. At national government level of budget, that's a terrible idea. This is why worldwide income taxes are the norm.

                    3. And an income tax discourages work. How are these not equivalently bad discouragement?

            3. Without debating the merits of income tax vs. sales tax, the original comment, to which I was responding, is that undefined "people" don't want the IRS at all. Which means there could be no sales tax either because somebody has to collect it.

              And while I find an income tax preferable to a national sales tax, I don't think it has to be as complicated as it is, and in lots of other countries it isn't. Ours is complicated as a function of every special interest in the country wanting special treatment. Get rid of that and a lot of the complications go away.

              1. Yes, I read the original comment. It was either silly, or hyperbolic. That you have negated the most silly and extreme position (abolish all tax collection) is not something to brag about.

                1. It was either silly, or hyperbolic, and is also the view taken by many libertarians, sovereign citizens, and some members of Congress. (I think Rand Paul was at one time on board with abolishing the IRS; not sure if he still is).

                  So it's not like arguing against pink unicorns, which nobody really does believe in. I don't see Congress actually abolishing the IRS, but then again I didn't see Trump being elected president either.

                  1. That's a mischaracterization of the view of the members of Congress. Typically they say "End the IRS as we know it" or "abolish and replace it". The general proposal is to radically simplify the tax code


                    1. My point is that within the past five years, there's a whole lot of stuff that was once considered the radical fringe that has indeed become the mainstream. People who want no IRS at all may be a small minority, but they're out there, including some members of Congress. One of the lessons of Trump is that we ignore the lunatic fringe at our peril.

                    2. I think it would be more accurate to say that the ability to conceal what is really mainstream is failing. People who wanted no IRS at all have always been a large fraction of the population, just not in government.

                      And the idea that it would be insane to be rid of this agency is silly. We could easily be rid of it if we replaced the revenue with a different source.

                    3. 1. That article is from 7 years ago. This desire has always been there.

                      2. "People who want no IRS at all may be a small minority, but they're out there, including some members of Congress. "

                      That's a gross mischaracterization. Generally what's desired is a much more simplified tax code. And that's been a fairly consistent desire among people for ages. Since before Reagan.

                    4. Brett, no, what appears to be mainstream is distorted by the fact that Kansas cancels New York in the US Senate. We're back to the issue of anti-democratic institutions giving the lunatic fringe far more political power than it should have. If we had truly democratic elections, the totally-out-of-the-mainstream people in flyover country would have 25% of Congress rather than close to half.

                      Armchair Lawyer, so are you saying *nobody* wants to abolish the IRS? Because if I'm reading him correctly, Brett Bellmore just copped to believing that himself.

                    5. Krychek,

                      What Brett said was "And the idea that it would be insane to be rid of this agency is silly. We could easily be rid of it if we replaced the revenue with a different source."

                      Again, that's a reimagining of the IRS. What's important to understand here is that (almost) all federal revenue goes through the IRS. Not just income taxes. Excise taxes, tariffs, and more.

                      When Brett says we could "replace" the IRS, that's akin to abolish and replace. It's like how the US "abolished" the Department of War...and replaced it with the Department of Defense.

                  2. Yes, and they shouldn't. This has been creeping encroachment on our rights going back 100+ years.

          2. Feds could just piggy back on state sales collection.

            Its far easier to collect from tens of thousands of businesses than a tens of hundreds of millions of individuals.

            Also, sales tax punishes consumption rather than work. Coincidentally, consumption it what drives carbon emissions. Sad to me that modern Democrats are so economically illiterate.

            1. I mean "tens of millions" not "tens of hundreds of millions" lol

            2. How would this 'piggybacking' work? Voluntary submissions? You're still going to have to have some agency to carry out collections.

              1. Maybe you all should stop making straw man arguments. The choice here is not no-agency vs. IRS. The choice is a system that is minimally intrusive, and not. See my above comment.

                1. The original comment to which I responded did indeed say no agency.

                  1. It didn't say "no agency", it said no IRS. The IRS is a specific agency.

              2. Do you think states that charge sales tax have gigantic departments that process sales tax returns? No, they don’t. You’re comparing a watermelon to a grape.

                1. It seems Florida (no income tax) has 5,000 employees in its Department of Revenue, Virginia (has income tax) has around 1000.



        1. Sorry, but that herring won't chum.

    3. Every year in Happy Gumdrop Fairy-Tale Land all of the sprites and elves and woodland creatures gather together to pick the Rainbow Sunshine Queen. Everyone is there: the Lollipop Guild, the Star-Twinkle Toddlers, the Sparkly Unicorns, the Cookie Baking Apple-cheeked Grandmothers, the Fluffy Bunny Bund, the Rumbly-Tumbly Pupperoos, the Snowflake Princesses, the Baby Duckies All-In-A-Row, the Laughing Babies, and the Dykes on Bikes. They have a big picnic with cupcakes and gumdrops and pudding pops, stopping only to cast their votes by throwing Magic Wishing Rocks into the Well of Laughter, Comity, and Good Intentions. Afterward they spend the rest of the night dancing and singing and waving glow sticks until dawn when they tumble sleepy-eyed into beds made of the purest and whitest goose down where they dream of angels and clouds of spun sugar.

      You don't live there.

      Grow the fuck up.

      1. You made that comment in reply to dwb68. It's funny because I would have used it to answer all the people disagreeing with him/her. We don't live in a magical kingdom where everyone in government is good, therefore we should strictly limit the potential for abuse by those people to whom we give the monopoly on legal lethal force.

        1. Count me as someone who, while not signing on to some especial IRS hate, doesn't want this technology in use by them (or any governmental agency).

        2. But no one is making the claim that everyone in government is good. Just that it should not be precluded from doing good just because it is also capable of doing evil. Not all parents are good; some of them sexually and physically abuse their children, and, within their homes, they, too, have the monopoly on the right to initiate force.

          So what you do is have transparency, a strong Bill of Rights, an independent judiciary, and such other precautions as will keep it on the right path. But I would argue that preventing government from doing good things probably does as much social damage as when it does bad things.

        3. You don't need to be a polyanna about civil servants to think the IRS is necessary, and wanting to end it is a childish take.

      2. Was that really necessary? Oh, you had fun writing it, but you really proved nothing with a long too cute response.

        1. Give the guy a break. He claims to be a DC federal employee and it's Friday, so no doubt his day is over by noon. He has all the coherence of being 4-5 beers in. Let him have his fun.

          1. I'm working till 7. Luckily, I enjoy my job.

        2. I don't have a lot of patience for people claiming 'lets not have an IRS' is a mainstream or practicable position.

          1. TFB about your patience level. The IRS can be tamed and shrunken down to the size of a school’s administration office if there were enough political will to do it.

            1. Nope, not and make the tax anything viable economically and equitably.

          2. Now there's a solid argument. It tries the patience of a notorious partizan hack to discuss it. Brilliant, color me convinced !

            1. It's as good as the argument against it, but has the virtue of being current and longstanding practice, adopted around the world.

              1. I am sure if the collection of arguments against it is your usual set of strawmen that might be the case. If you just drool and dismiss in sarcastrian style, you simply arrive at your motivated conclusions. Nothing special there.

                I have yet to see any engagement at all with ideas either pro or con. You simply make noise and cast shade. It is fundamentally your style.

    4. " This post greatly misunderstands what people want out of the IRS (and also the ATF). They want it to not exist at all. "

      That a right-wing legal blog -- one that provides the best conservative legal academia can muster these days, apparently -- attracts such a strong concentration of antisocial, delusional, disaffected, intolerant losers is something I find comforting.

      This is how you lose (lost) a culture war, clingers.

  3. Anything that makes it easier for the government to identify me and make services easy is really good. Nothing in our experience indicates that it could be misused. Ever.
    All is good.

  4. Just because you CAN do something does not mean you SHOULD do it.

    Mr. Baker, have the past 2 years taught you nothing?

    1. Apparently it's always sunny in Academe...

      1. Always sunny and all government employees are angels.

  5. Ah yes, nothing ever goes wrong with giving the government more information about you. How did you even formulate that word souffle? Nevermind the 16th's complete contradiction to the 4th..... But who cares about 4th amendment rights, right? I mean we should be happy the Pentagon spends 1 trillion a year and SSI steals and wastes 1.5T. I don't want to opt in to a broken, return less SSI.

    1. I'm so old, I remember when libertarian thought held sway at Reason. Giving the IRS more tools to track us doesn't really fall into libertarian territory.

      1. "Often libertarian"

        1. "Libertarianish"

          (Which seems to mean 'sheepish conservatives prancing around in silly, unconvincing libertarian drag,' at least in some circles.)

    2. "Nevermind the 16th's complete contradiction to the 4th"


      1. Nice lack of response, troll.

        1. I'll give you a response in the form of a syllogism:
          All one need do responding to complete nonsense is laugh at it.
          All you said about the 4th and 16th was complete nonsense.
          Therefore, LOL.

          Feel better?

          1. You don't possess the intellect to respond in a reasonable manner. It is not my fault you are a partisan tool who doesn't understand why the 4th was created to begin with. Please don't respond again because you are incapable of non-trollish behavior.

            1. Don't you want to argue that the number of stripes on the courtroom flag mean the 4th Amendment destroys the 16th? Lol.

    3. You have no 4th Amdt rights here - you effectively waived them in trade for access to IRS information they have on you.

    4. The federal government already has biometric information from states, which require you to submit biometric information to get a state ID or driver's license. That's why I am worried more about sharing with a private surveillance company.

      1. Yes, and they shouldn't. This has been creeping encroachment on our rights going back 100+ years.

  6. If the IRS were doing facial recognition in-house, I might support it for these reasons. But they aren't. And part of the point of a free capitalist economy is that I should get to choose which businesses I interact with and which I don't. I happen to dislike the company for reasons that have nothing to do with the facial recognition technology, I would rather deal with a human at the IRS than with them, and I think it is wrong for my government to force on my an interaction with a commercial company that I do not want.

    1. I wouldn't trust the IRS to do facial recognition in house correctly.

      1. Or to protect their data - as the OPM breach so clearly demonstrated.

  7. You seem to be ignoring the potential for data breaches.

    1. Data breeches wouldn’t be necessary. The company reserved the right to share the information you gave them, and they used to prove your identity, to their partners.

    2. I agree with your sentiment but I think it's not so much ignoring the potential for data breaches and instead it's an acceptance of the inevitable data breaches.

      This is at the govt and society level too that - at the general level - we don't take privacy more seriously.

      I think it's that people are (again generally), willing to accept the pain for the convenience (like pollution and driving cars).

      1. You're missing the point of the comment, apedad. Biometric credentials are themselves something that can be lost or stolen. The company doesn't actually keep a copy of your fingerprint (to take a single example) - they keep a numerical representation. If a bad guy gets hold of that numerical representation, it can be presented directly to the authentication system to give the impression that the hacker is you.

        In some ways, this is already true. If a hacker can get access to the hash of your password, that can be presented to the authentication system directly. But in some important ways, this is worse. If a hacker compromises your password, you can always pick another. When the hacker compromises your finger - you have nine others to last the rest of your life. (And only one face.)

  8. Just lie back and think of England.

    1. That no longer works.
      Every time I think of England, I think how sad it is that we are becoming more like them.

  9. So, facial recognition of taxpayers could never be used to, say, identify people photographed taking part in demonstrations the government doesn’t like, and audit their accounts or freeze their refunds?

    But, you say, government would never do that, or other stuff like freezing your bank account for demonstrating.

    Nah. That’d never happen.

    1. But the private company you have to deal with for damn sure would.

  10. This is a classic example of myopic thinking. Sure, facial recognition technology might be more efficient if your sole focus is on service from the IRS. The fact that it might be abused, or have collateral consequences, simply does not occur to the writer.

    Same problem with lockdowns.

    1. Given Baker's other commentary, I do not assume the possibilities for abuse or collateral use/consequences escaped him.

      1. Exactly. That's a bonus feature.

  11. Baker just wants Chinese social control mechanisms with American characteristics.

    Which means outsourcing this half--baked bullshit "AI" to an unaccountable private firm that vastly overstated its capabilities, and that I fully expect to see hacked in coming years, probably by a rival nation state like China. (cf. the OPM hack.)

    The inevitable problems will result in victim-ping pong ("You have to talk to ID.Me." "You'll have to take it up with the IRS.") and yet another entrenched, broken private firm poorly performing public functions that will need legal carve-outs because they can't work otherwise. (cf. credit reporting agencies.)

    Welcome to the sort of policy you get out of conservative security types.

  12. It's coming. I see a pretty girl across a stadium. My glasses see her face, and now I know all her information, including internet history.

    1. Unfortunately for you, she in turn knows your Internet history, and therefore immediately pulls out a container of mace.

  13. This is completely misunderstanding the point. To the point that you should either not be allowed in public unsupervised or your are being deliberately dense.

    I don't want facial recognition by the IRS because
    1: I don't want them having that completely unnecessary information.
    2: There are more accurate and more useful ways of identifying you that don't require a scan of your face. Credit companies have required you to answer trivia questions about your own life for decades now.
    3: Injuries happen. If you have a disfiguring injury or major surgery, you will be completely locked out until you heal. Using biometrics, you can't do it and no one can do it for you, even with full permissions.
    4: I would estimate at least 30% of the country doesn't actually file their own taxes. My wife has never seen a tax form and has no desire to do so. It was pulling teeth to get her to log in to the system to reject the "tax credit checks" that were messing up my deduction balance. This facial recognition means that heads of families who handle finances can't actually handle the finances.

    1. These are good points, IMO.

  14. Sometimes libertarians for the police state!

    Sounds legit...

    1. Collecting taxes makes a police state?

      1. Go back and read what the article is about.

        Bonus points is you imagine (and be honest!) what your reaction would be if Trump or BUSH!!!! announced they we going to use the technology.

        I would be consistent, would you?

  15. It was the absolute cluelessness of the entire setup that was surprising. Should we be worried about our personal information, in the hands of the government? I am, and I think that most would be if they understood the issues.

    For example, after 9/11, the PATRIOT Act was enacted, that allowed the NSA to gather massive amounts of personal data, and store it in their massive database farm in Utah (etc), all in the name of fighting terrorism (which apparently now includes being a Republican and opposing Biden and the Democrats, thanks to AG Garland classifying White Nationalists (whoever they are) as Domestic Terrorists) - but that is a different issue). At a minimum, this information includes all of your electronic communications as well as your phone and cell information. Which, turns out to roughly correspond to your movements through space. Also, Customs, INS, etc information. Likely much more by now. Legal safeguards were put in place to keep the information from being misused. Then, NSA Dir Adm Rogers discovered, in late Spring of 2016, that the FBI had hired contractors to quality check and monitor the NSA databases through the FISA 702 access that their Counterterrorism and Counterintelligence divisions had been given for access to the database. And then, we find that 95% or so of all of the 702 accesses are by these contractors, who were Clinton operatives using it to track their political enemies, including Bernie Sanders and Donald Trump, and their campaign aides. They were doing it by using “about” queries, changing the search strings. All in the name of monitoring quality control. Did anyone go to jail for this? Of course not. Was it illegal? Probably. But did any single person, other than DAG Sally Yates, who authorized much of this, have enough personal culpability to go to jail? Probably not, and it was within her job description to authorize what was done at a high level.

    That was with carefully constructed safeguards. This situation with the IRS (and apparently some other smaller agencies) seems thrown together with almost no regard to personal privacy. There were essentially no legal safeguards put in place to protect personal privacy. Safeguards that an agency (like the FBI in the NSA database case) can’t just slide around with a couple of internal memos, and maybe an innocuous sounding rule change or two. In the IRS case, we are talking loopholes that you could drive a truck through.

    1. A clarification. As far as I can tell, DAG Yates did nothing illegal. What she did was tweak the FISA Title VII rules a little bit, in seemingly unobjectionable ways. Oversight of those rules was within her job description. But those small changes opened holes in the carefully designed protections that allowed others to drive trucks through the holes.

      The other part of this is that responsibility for things in the government is usually so diffused that it is usually impossible to get criminal convictions for wrongful acts. The surveillance under the 4 FISA warrants on Carter Page (which appears to have ultimately extended into the Trump White House) was illegal, because the warrant applications were fraudulent. But the only person prosecuted was a low level attorney, who actually altered a materially relevant document submitted to the FISC. Everyone else just did a small part of the work, and intent was thus impossible to prove. And the top officials (AG, DAG, FBI Dir, DD) legally required to certify the applications got off by claiming that they were depending on their underlings, which was necessary because of the volume of applications. Their underlings were responsible. Don’t look at them. As I said, responsibility was too diffuse to ever prosecute almost most of those involved. And that was with statutes specifically crafted to protect privacy. When I initially read the statutes, I thought that the high level certification meant that these four top people were staking their personal reputations and continued employment in a top position on their certification. No doubt those in Congress drafting the PATRIOT Act thought so too. Nope. That isn’t how the bureaucracy works. Responsibility is almost always too diffuse to prosecute those violating the law.

  16. Baker again completely misses the point and takes on a strawman argument instead. The real problem is not that these algorithms are inefficient (though that is a problem for some subsets of people for whom the training data is insufficient). The problem is that they will become too efficient. Further, that the government (and in particular, the IRS) has shown itself incapable of protecting my identity credentials in the first place.

    The last thing I want is a government capable to tracking the people who disagree with it wherever they go.

    1. In a more sane world, it would be long past time to have an honest conversation about privacy and security. As it stands, it will be absolutely be abused by those in power.

      It would be nice to have an actual privacy amendment to truly limit the government scope in this area.

      1. Accept humans as they are, fearful about security and casual about privacy.

        These are emotional lines to draw more than rational ones.

        Remember: you, too, are a human, and not somehow the only sane rational individual around.

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