A loose coalition of privacy-minded digital rights groups and policymakers is crafting a strategy to rein in facial recognition technology in cities across the country.
Three cities thus far have banned government use of the technology: San Francisco, Somerville, a suburb of Boston, and now Oakland. Using facial recognition bans in those cities as a blueprint, opponents of the biometric technology hope to build momentum at all levels of government.
The technology, which identifies individuals by matching facial features to existing photo and video databases, has progressed at a full sprint along with the rise of machine learning and artificial intelligence in recent years. From smart doorbells to school facial scanners, facial recognition technology is suddenly everywhere at once.
That’s particularly true for policing applications. The biggest airports in the country are scanning us as we board international flights. The policy director of U.S. Customs and Border Patrol (CBP) believes that facial recognition has already become essential to his agency. The NYPD adopted the technology eight years ago and dozens of other police departments have followed suit.
Until now, misgivings around the technology didn’t seem to be slowing it down. Privacy groups and officials that spoke to The Daily Beast often referenced the “mission creep” of facial recognition tech. Its opponents say facial recognition poses an existential threat to digital privacy.
“This is something that’s happening right now,” said Evan Greer, deputy director of digital rights group Fight For The Future. “It’s not some dystopian, theoretical future harm. It’s a real, immediate threat that’s spreading very quickly.”
The technology's proponents say it will supercharge law enforcement’s ability to identify and locate suspects and any privacy sacrifice is a small price to pay.
INSIDE THE OAKLAND BAN
On July 16, a law banning any Oakland government agency from using facial recognition software passed the first of two city council votes unanimously. The city is the third in the country to pass such a measure, amending its stringent laws on government purchase of surveillance equipment. Officials who spoke to The Daily Beast said the bill is widely expected to pass its second and final vote on September 17.
The night of the vote, less than 10 people addressed the council about Item 7.7, as the ban was known in Oakland’s two-story city council chambers. The measure was notably less contentious than the proposed sale of a downtown lot to health-care provider Kaiser Permanente. The few who did talk of the technology measure favored it, and no one jeered at them, as many did when someone spoke on behalf of the medical giant.
“If you ban facial recognition, you’re stopping billionaires from profiting off deporting immigrants. Please support the ban. Please keep this a sanctuary city,” a young Oakland resident in a Democratic Socialists Of America sweatshirt said to the council. She called out the surveillance company Palantir by name.
While no one at the meeting spoke out against the ban, some pointed to more systemic issues in the city that banning facial recognition was unlikely to solve.
“Every time my son and grandson step outside, they’re dealing with racial profiling. It’s not about technology. How are you going to talk about facial recognition technology when [you have] never dealt with racism and racial profiling?” an elderly black woman asked the city council. She continued to accuse the city council of inaction for several minutes.
Oakland has had a strained relationship with its police force for decades. The department has been under federal monitoring to comply with mandated reforms for 16 years, a record length of time for any department.
Though the city’s police department wanted to be able to apply facial recognition to footage already taken (rather than a real time video feed), city councilors rejected the idea. In response to a request for comment, a spokesperson for the Oakland Police Department said only that the agency does not use facial recognition software and works with the Privacy Commission.
Ultimately, all eight members of the council approved the ban. It was the same measure San Francisco passed, verbatim.
A TESTING GROUND
Brian Hofer, chair of the Oakland Privacy Commission, saw the vote as a unqualified success. As the ACLU prioritizes a national facial recognition ban as part of its larger campaign on police surveillance, Hofer’s group is eyeing other Bay Area counties. The Santa Clara County and San Mateo County sheriff’s offices both use facial recognition, he said, and may be his biggest opponents. The sheriffs did not respond to multiple requests for comment.
“Oakland is where we push the envelope and test things out and see if we can spread it to other jurisdictions,” Hofer told The Daily Beast.
The bans on facial recognition make for big headlines, but the actual legislation is only five sentences within a 12-page law. To Hofer and Matt Cagle, an attorney for the ACLU, the larger framework regulating surveillance is the bigger story. The broader law, in part authored by the ACLU and now in place in 13 cities, requires city councils to approve any government or law enforcement agency’s purchase of surveillance equipment or software.
Santa Clara and San Francisco county, the cities of Davis, Berkeley, Oakland, Palo Alto, and San Francisco and the region’s train system, Bay Area Rapid Transit (BART), have all adopted the pre-approval legislation, rendering them ripe for a replication of the ban.
The existing legislation makes it easy to replicate the ban, Hofer explained. He copied and pasted the same amendment language from San Francisco, written in conjunction with Cagle and San Francisco Supervisor Aaron Peskin, to Oakland.
City councilors from Ithaca, New York and Cambridge, Massachusetts called Oakland City Council President Rebecca Kaplan after the successful vote to request copies of the legislation in hopes of crafting their own version, she said.
“In Oakland, we’re already struggling to eliminate racial disparities in law enforcement,” Kaplan told The Daily Beast. “The notion of using a tech that could make that worse, as we’re trying to heal from it, seemed like going backwards.”
Ben Ewen-Campen, the Somerville city councilor who introduced his city’s prohibition on facial recognition, told local news in late June that the bans attract nationwide attention due to anxiety about the march of technological progress.
“There is this feeling, in 2019, that change in this technological society is just inevitable and there’s just an onslaught of privacy invasions, and there’s this sense that it’s increasingly difficult to just be free in society as individuals,” he said. “This [law] is a small step, but it’s a reminder that we are in charge of our own society.”
NOT ALL OPPOSED
Proponents of facial recognition technology see it as a powerful aid to law enforcement’s beneficial mission—and one that shouldn’t be controversial. Amazon, which makes its own facial recognition software known as “Rekognition,” has argued strongly in favor of the technology.
“Facial recognition technology significantly reduces the amount of time it takes to identify people or objects in photos and video,” Amazon said in a blog post earlier this year. “This makes it a powerful tool for business purposes, but just as importantly, for law enforcement and government agencies to catch criminals, prevent crime, and find missing people.”
In a New York Times op-ed, NYPD Commissioner James O’Neill touted the software’s safety benefits. According to O’Neill, cross-referencing investigation videos with its facial recognition database led to 998 arrests in 2018.
“Facial recognition technology can provide a uniquely powerful tool in our most challenging investigations: when a stranger suddenly commits a violent act on the street,” O’Neill wrote. “It would be an injustice to the people we serve if we policed our 21st-century city without using 21st-century technology.”
Amazon has dismissed the bans as premature, calling for “open, honest, and earnest dialogue among all parties involved to ensure that the technology is applied appropriately,” the company wrote.
When asked about the Oakland ban, an Amazon spokesperson said “We believe that facial recognition can materially benefit society.”
Some privacy activists see the call for a dialogue on the issue as disingenuous and already conceding to the demands of facial recognition makers.
“A regulatory framework for facial recognition would be a trap because it skips the debate of whether this tech should exist,” Fight for the Future’s Evan Greer said.
WHAT HAPPENS NEXT?
The ACLU is currently advising lawmakers in New Jersey, California, Massachusetts, Michigan, and New York on other facial recognition bans and restrictions.
“Every few days now, we hear from another legislator interested in passing a ban,” Cagle said.
The Michigan state legislature is currently considering a five-year moratorium on any government use of facial recognition. The Massachusetts state legislature is considering a temporary ban without definite time restrictions. And last month, a New York Assembly passed a ban on facial recognition in schools after the New York Civil Liberties Union sent an open letter to the state’s education department calling for a moratorium. The ACLU will also release a step-by-step guide in September for people to petition their local governments to take up similar measures.
So far, the three cities that have passed facial recognition bans are deeply politically blue with left-leaning city councils that reflect their voter bases. The question of whether a similar law could pass in a red district remains unanswered.
Cagle believes right-leaning cities and states could enact bans on facial recognition. He pointed to recent bipartisan anger over the technology in Congress and to the passage of legislation mandating public oversight of surveillance technology in Nashville, Tallahassee, and Yellow Springs, Ohio. Those surveillance laws are just a hop, skip, and a small amendment away from facial recognition bans.
At the federal level, a House hearing in May opened the issue for discussion, putting it on lawmakers’ minds. And last week, a bill introduced by Democratic Reps. Yvette Clarke, Ayanna Pressley, and Rashida Tlaib proposed a ban on all biometric recognition technology in public housing.
Amazon is also hoping for federal regulation, if for no other reason than to standardize things. Amazon Web Services CEO Andy Jassy told Recode in June, “I wish [Congress] would hurry up… otherwise, you’ll have 50 different laws in 50 different states.”
A patchwork of legislation may come to pass, but Hofer is optimistic about the future of the campaign.
“Most of my privacy frustration comes from people who are apathetic or don’t care,” Hofer said. “People care about this.”