San Francisco Committee Passes Ordinance to Ban Facial Recognition

By: Mike Maharrey

SAN FRANCISCO, Calif. (May 6, 2019) – Today, the San Francisco Board of Supervisors’ Rules Committee unanimously approved an ordinance that would set the stage to limit the acquisition and use of spy gear by law enforcement and other city agencies and ban the use of facial recognition technology in the city.

Supervisor Aaron Peskin introduced the ordinance in January. The legislation would require public oversight of surveillance tech and would ban government use of facial recognition. Under the proposed law, any city department would have to get the Board of Supervisors approval before taking any of the following actions.

1. Seeking funds for Surveillance Technology, including but not limited to applying for a grant, or accepting state or federal funds, or public or private in-kind or other donations;
2. Acquiring or borrowing new Surveillance Technology, including but not limited to acquiring Surveillance Technology without the exchange of monies or other consideration
3. Using new or existing Surveillance Technology for a purpose, in a manner, or in allocation not specified in a Surveillance Technology Policy ordinance approved by the Board in accordance with this Chapter 19B; or
4. Entering into an agreement with a non-City entity to acquire, share, or otherwise use Surveillance Technology.

Before receiving Board approval, the agency seeking to acquire surveillance technology would have to submit an extensive, detailed Surveillance Impact Report and a Surveillance Technology Policy Submission, outlining how the technology would be used, the cost of the technology, how collected data would be handled and protected, training guidelines and more. These documents would have to be made available to the public and the Board could not approve the technology without a first holding a public meeting.

The Board of Supervisors would only be able to approve new surveillance technology under the ordinance if it finds the benefits outweigh the costs, that the agency will have policies in place that ensure civil rights will be protected and that no community or group will suffer a disparate impact as a result.

The ordinance would outright ban the use of facial recognition technology.

“Notwithstanding the provisions of this Chapter 19B, it shall be unlawful for any Department to obtain, retain, access, or use: 1) any Face Recognition Technology; or 2) any information obtained from Face Recognition Technology.”

With the Rules Committee approval, the proposed ordinance will now move to the full Board of Supervisors. ACLU of Northern California Technology and Civil Liberties Attorney Matt Cagel said it was a great first step.

“The ACLU applauds the Rules Committee for passing this ordinance and urges the full Board of Supervisors to do the same. Democratic oversight of surveillance technology promotes public safety and protects our civil rights. With this law, San Francisco can demonstrate real tech leadership by giving our communities a seat at the table, and the power to create safeguards to prevent misuse.”

The Tenth Amendment Center joins with a broad coalition of organizations including ACLU of Northern California, Color of Change, Council on American-Islamic Relations San Francisco Bay Area, The Greenlining Institute, Freedom of the Press Foundation, Media Alliance and Oakland Privacy in supporting the ordinance.

The introduction of this ordinance in San Fransico is part of a broader nationwide effort to push back against the surveillance state at the local level know as the Community Control Over Police Surveillance (CCOPS) initiative. The ordinance language is based on model legislation developed by the ACLU with input from the Tenth Amendment Center.

Cambridge, Mass. approved an ordinance based on the CCOPS model in December 2018. It joined at least nine other municipalities that have passed similar laws including Seattle, Nashville, Somerville, Mass., Berkeley, Oakland, Davis, Palo Alto and Santa Clara County, Calif, (home of Silicon Valley). The San Francisco Bay Area Transit Authority also approved such a policy.

Practical Effect

Local police have access to a mind-boggling array of surveillance equipment. As it now stands, many law enforcement agencies can obtain this high-tech, extremely intrusive technology without any approval or oversight. Police often operate highly intrusive surveillance technology in complete secrecy.

The federal government facilitates local surveillance through grants and other funding sources for this spy-gear, meaning local governments can keep their purchase “off the books.” Members of the community, and even elected officials, often don’t know their police departments possess technology capable of sweeping up electronic data, phone calls and location information.

In some cases, the feds even require law enforcement agencies to sign non-disclosure agreements, wrapping surveillance programs in an even darker shroud of secrecy. We know for a fact the FBI required the Baltimore Police Department to sign such an agreement when it obtained stingray technology. This policy of nondisclosure even extends to the courtroom, with the feds actually instructing prosecutors to withdraw evidence if judges or legislators press for information. As the Baltimore Sun reported, a Baltimore detective refused to answer questions about the department’s use of stingray devices on the stand during a trial, citing a federal nondisclosure agreement.

As privacysos.org put it, “The FBI would rather police officers and prosecutors let ‘criminals’ go than face a possible scenario where a defendant brings a Fourth Amendment challenge to warrantless stingray spying.”

Ordinances like the one introduced in San Francisco create a framework of oversight and transparency for surveillance programs. They also set the stage to limit surveillance by giving residents input into the process and allowing them to oppose and stop the purchase of spy-gear.

Impact on Federal Surveillance

Passage of local ordinances not only protects the privacy of people in that area. They also undermine the federal surveillance state. The federal government funds much of the surveillance technology acquired by state and local law enforcement. In return, federal agencies tap into the data swept up by these agencies through information sharing agreements and fusion centers. Information gathered by your local police department often ends up permanently stored in federal databases. These create the backbone of the federal surveillance state.

The feds can share and tap into vast amounts of information gathered at the state and local level through fusion centers and a system known as the “information sharing environment” or ISE. In other words, stingrays create the potential for the federal government to track the movement of millions of Americans with no warrant, no probable cause, and without the people even knowing it.

Fusion centers were sold as a tool to combat terrorism, but that is not how they are being used. The ACLU pointed to a bipartisan congressional report to demonstrate the true nature of government fusion centers: “They haven’t contributed anything meaningful to counterterrorism efforts. Instead, they have largely served as police surveillance and information sharing nodes for law enforcement efforts targeting the frequent subjects of police attention: Black and brown people, immigrants, dissidents, and the poor.”

Fusion centers operate within the broader ISE. According to its website, the ISE “provides analysts, operators, and investigators with information needed to enhance national security. These analysts, operators, and investigators…have mission needs to collaborate and share information with each other and with private sector partners and our foreign allies.” In other words, ISE serves as a conduit for the sharing of information gathered without a warrant. Known ISE partners include the Office of Director of National Intelligence which oversees 17 federal agencies and organizations, including the NSA. ISE utilizes these partnerships to collect and share data on the millions of unwitting people they track.

By facilitating local surveillance, the federal government undoubtedly gains access to a massive data pool on Americans without having to expend the resources to collect the information itself. By requiring approval and placing the acquisition of spy gear in the public spotlight, local governments can take the first step toward limiting the surveillance state at both the local and national level.

In a nutshell, without state and local cooperation, the feds have a much more difficult time gathering information. This represents a major blow to the surveillance state and a win for privacy.

Passage of an ordinance in one locality may not seem significant. But when multiplied over hundreds of cities and counties across the United States, this strategy could seriously undermine federal surveillance programs. If local police can’t collect and share the data, it cannot end up in federal databases.

WHAT’S NEXT

The ordinance will now go to the full Board of Supervisors on May 14for a “first reading” and a vote. If it passes first reading it will go back before the board and May 21. If you live in Northern California, Here is the link to an action that will automatically email all Supervisors a preset message of support.