SANTA CRUZ, Calif. (March 19, 2020) – Last week, a Santa Cruz City Council committee has approved a proposed ordinance to ban facial recognition and set the stage to limit the acquisition and use of surveillance technology by law enforcement and other city agencies.

Mayor Justin Cummings introduced the proposed ordinance. The law would prohibit government use of facial recognition and predictive policing technology. The proposed ordinance would also prohibit any government agency in the city from acquiring or using any surveillance technology without clear, written use policies, public debate and city council approval.

On March 12, the Santa Cruz Public Safety Committee approved the measure. It will now go before the full council, most likely in April.

Technology and Civil Liberties Attorney with the ACLU of Northern California Matt Cagle said secretly deployed surveillance “makes communities less safe, less free, and sets in motion painful cycles of discrimination and profiling.”

“With this ordinance, Santa Cruz will set a new course using a tried and tested framework based on inclusivity and community consent.”

The Cambridge ordinance was based on model legislation developed by the ACLU with input from the Tenth Amendment Center. Cambridge is one of multiple cities that introduced measures as part of the #TakeCTRL initiative. An ordinance to increase oversight and transparency for surveillance passed in Santa Clara County in 2016. Berkeley, Davis and Oakland passed similar measures in 2018. Other cities across the country have passed this type of ordinance as well.

Several cities, including San Francisco and Oakland, subsequently expanded their ordinances to ban facial recognition.

IMPACT

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 proposed in Santa Cruz 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 PROGRAMS

Federal, state and local law enforcement agencies are partnering to create a massive, nationwide facial recognition system. The FBI rolled out a nationwide facial-recognition program in the fall of 2014, with the goal of building a giant biometric database with pictures provided by the states and corporate friends.

The Center on Privacy and Technology at Georgetown Law released “The Perpetual Lineup,” a massive report on law enforcement use of facial recognition technology in the U.S. You can read the complete report at perpetuallineup.org. The organization conducted a year-long investigation and collected more than 15,000 pages of documents through more than 100 public records requests. The report paints a disturbing picture of intense cooperation between the federal government, and state and local law enforcement to develop a massive facial recognition database.

“Face recognition is a powerful technology that requires strict oversight. But those controls, by and large, don’t exist today,” report co-author Clare Garvie said. “With only a few exceptions, there are no laws governing police use of the technology, no standards ensuring its accuracy, and no systems checking for bias. It’s a wild west.”

There are significant questions about the reliability and accuracy of facial recognition. In a test run by the ACLU, Amazon’s facial recognition tool “Rekognition” incorrectly matched 28 members of Congress, identifying them as other people who have been arrested for a crime.

With facial recognition technology, police and other government officials have the capability to track individuals in real-time. These systems allow law enforcement agents to use video cameras and continually scan everybody who walks by. According to the report, several major police departments have expressed an interest in this type of real-time tracking. Documents revealed agencies in at least five major cities, including Los Angeles, either claimed to run real-time face recognition off of street cameras, bought technology with the capability, or expressed written interest in buying it.

In all likelihood, the federal government heavily involves itself in helping state and local agencies obtain this technology. The feds provide grant money to local law enforcement agencies for a vast array of surveillance gear, including ALPRs, stingray devices and drones. The federal government essentially encourages and funds a giant nationwide surveillance net and then taps into the information via fusion centers and the Information Sharing Environment (ISE).

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.

In a nutshell, without state and local cooperation, the feds have a much more difficult time gathering information. Passage of the Santa Cruz ordinance would eliminate one avenue for gathering facial recognition data. Simply put, data that doesn’t exist cannot be entered into federal databases.