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In May the Board of Supervisors for the City and County of San Francisco approved an ordinance banning the use of facial recognition technology by all city departments. It’s the only major U.S. city to have taken such action against the emerging technology. But the measure is part of a larger and growing movement among localities and states to increase oversight of the use of surveillance technologies by government entities.
San Francisco’s ban on facial recognition technology is just one provision of an ordinance restricting the city’s use of surveillance technologies in general. Among other things, the law will require city departments to obtain approval from the Board before acquiring any type of surveillance equipment - from closed-circuit TV cameras to software for monitoring social media - or obtaining information acquired through the use of such technology. Departments that obtain Board approval, through a process involving a public hearing, will have to file a report each year on the use of the applicable technology.
The ordinance doesn’t apply to private entities, which as the Atlantic pointed out, “introduces some ironies.”
San Francisco’s police department “will be barred from using Amazon’s Rekognition software to scan video footage for suspects after a shooting - but a grocery store will be permitted to do the same thing to analyze shopper behavior,” the publication said.
San Francisco isn’t the first locality to pass such sweeping restrictions on government surveillance. Santa Clara County, encompassing much of California’s Silicon Valley, approved an ordinance like San Francisco’s - minus the ban on facial recognition technology - in 2016. And unlike previous laws dealing with the issue, it didn’t just apply to a particular surveillance technology that raised privacy concerns but to all such technologies, including those that hadn’t been developed yet.
“Silicon Valley’s local lawmakers made sure the law passed today was future-proof by creating consistent rules for all the surveillance technology that currently exists and those we know will come,” Nicole Ozer of the American Civil Liberties Union of Northern California said at the time.
In 2017 Nashville; Seattle; and Somerville, Massachusetts passed ordinances similar to Santa Clara County’s. And in 2018 Lawrence and Cambridge, Massachusetts; Yellow Springs, Ohio; and the California cities of Berkeley, Davis, Oakland and Palo Alto all did the same.
There are some significant variations among the laws, such as San Francisco’s ban on facial recognition technology and whistleblower protections in Oakland. But they all broadly restrict the use of surveillance technology by government agencies.
The laws came after a decade-long, federally-subsidized expansion of surveillance technology use by local law enforcement agencies across the country, spurred by the 9/11 terrorist attacks. Often those technologies, including automated license plate readers, biometric (e.g., face, voice, gait, etc.) identification systems, cell phone tracking devices, drones, and software for predicting criminal activity, have been deployed without notification of impacted residents or local governments. The New Orleans Police Department used predictive policing software to identify potential perpetrators and victims of crimes for six years without the city council knowing about it.
In response to this surveillance tech boom, the ACLU launched an effort in 2016 to ensure adequate oversight of municipal surveillance. The organization’s Community Control Over Police Surveillance (CCOPS) campaign included a model law requiring city council approval for the acquisition of surveillance technologies and annual reporting on the use of such technologies to the council and the public, among several other things.
According to the ACLU’s CCOPS webpage, the surveillance ordinances passed in Santa Clara County, Nashville, Seattle, Somerville, Lawrence, Cambridge, Yellow Springs, Berkeley, Davis, Oakland, Palo Alto, and San Francisco were all CCOPS efforts.
There hasn’t been much formal action on the issue this year in major U.S. cities other than San Francisco, according to a new local government service provided by LexisNexis State Net. That service, which currently covers major jurisdictions in 37 states, shows San Francisco, Santa Clara County and Seattle recently passed ordinances related to the government surveillance restrictions they’d previously approved. But most of the ordinances in the database, including those proposed or approved in Atlanta, Houston, Kansas City and Phoenix, authorize rather than restrict the use of surveillance technologies.
According to the CCOPS webpage, however, there are more than a dozen cities, large and small, working on their own CCOPS ordinances. They include Boston; New York City; Muskegon, Michigan; and Hattiesburg, Mississippi. The webpage also indicates California and Maine are working on statewide CCOPS legislation.
What’s more, ACLU Senior Advocacy and Policy Counsel Chad Marlow, who leads the CCOPS campaign, told SNCJ the localities and states identified on its webpage as “Working on CCOPS legislation” are just the ones where the process is far enough along to make it public. He said CCOPS efforts are also underway in “quite a few other places.”
In addition to the state CCOPS efforts, at least nine state legislatures have considered bills this session aimed at restricting government use of surveillance technologies, according to the National Conference of State Legislatures and LexisNexis State Net’s legislative tracking system (see Bird’s Eye View). At least 13 states have also considered measures dealing with government use of biometric data, one of which, New Mexico HB 98, has been enacted.
Pam Greenberg, who tracks technology issues for NCSL, said she’s “seen an increase in all types of privacy legislation this year” and expects “that trend to continue.”
As with other privacy-related issues, much of the debate over the government surveillance measures - in city halls and statehouses - revolves around the balance between security and civil liberty.
“This is really about saying we can have security without being a security state,” San Francisco Supervisor Aaron Peskin said of the city’s new government surveillance ordinance, which he wrote, as the San Francisco Chronicle reported.
Peskin and others say surveillance technologies raise serious societal concerns. Among them is the threat they pose to citizens’ ability to freely exercise their civil rights, such as attending a political protest. They also subject individuals simply going about their daily lives to the same scrutiny as those with criminal intent.
“When you have the ability to track people in physical space, in effect everybody becomes subject to the surveillance of the government,” Marc Rotenberg, executive director of the Electronic Privacy Information Center, told the New York Times.
Surveillance technologies also make mistakes. A test of Amazon’s Rekognition system last year by the American Civil Liberties Union misidentified as criminals 28 members of Congress, a disproportionate number of whom were people of color, including six members of the Congressional Black Caucus.
And critics say the technologies can too readily be used to intentionally target specific populations, such as African-Americans or immigrants, as China - a country with an estimated 200 million surveillance cameras – has been doing with the Uighurs, a largely Muslim minority in its western region.
But others argue that technologies like facial recognition make the public safer.
“It is ridiculous to deny the value of this technology in securing airports and border installations,” said Jonathan Turley, a professor of public interest law at George Washington University, as the Times reported. “It is hard to deny that there is a public safety value to this technology.”
And as Tony Montoya, president of the San Francisco Police Officers Association, noted, according to the Times, facial recognition technology has also “been successful in at least providing leads to criminal investigators.” One recent example is the use of the technology to help identify the suspect in a mass shooting at an Annapolis, Maryland newspaper in June.
For those and other reasons some oppose the idea of banning such technologies.
“We agree there are problems with facial recognition ID technology and it should not be used today,” the group Stop Crime SF said in a statement. “But the technology will improve and it could be a useful tool for public safety when used responsibly and with greater accuracy. We should keep the door open for that possibility.”
Some have also taken issue with the cost of complying with the surveillance ordinances. According to the Chronicle, the SFPD estimates it will take two to four full-time employees to carry out the compliance responsibilities associated with San Francisco’s new ordinance.
But more ordinances like it appear to be on the way. The ACLU’s Marlow said he thinks the momentum of the CCOPS campaign will not only continue but increase.
“Having passed 13 laws in 2 1/2 years - a startling average of one new law less than every 3 months - the question has gone from asking new cities if they would pass a CCOPS law, to asking them why they don’t have one,” he said. “In the next 12 months, I expect we will see quite a few more major U.S. cities adopting CCOPS laws, which will just add to the campaign’s ongoing strength.”
-- By KOREY CLARK