The Fight Against Government Face Surveillance: 2019 Year in Review

Vendors woo law enforcement with a seemingly inexhaustible flow of new spy tech. This places concerned community members, civil society, and lawmakers in a seemingly Sisyphean struggle of trying to keep up with new technological threats to privacy, and to shepard the adoption of enforceable policy to protect essential civil liberties. If 2018 was the year of communities standing together in the fight for democratic control over whether or not police may acquire surveillance technology, 2019 was the year that many of these same communities led the charge to ban government face surveillance. 

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Local Bans 

In May of this year, San Francisco became the first city in the United States to ban local government use of face surveillance technology. San Francisco’s ban was enacted with overwhelming support from the City’s Board of Supervisors as part of the city’s Stop Secret Surveillance Ordinance. The Stop Secret Surveillance Ordinance banned the use of face surveillance by local government. It also provided the Community Control of Police Surveillance (CCOPS) protections that had already been adopted in neighboring Oakland and Berkeley—and close to a dozen other cities nationwide. By October, Berkeley and Oakland followed suit, amending their existing CCOPS laws to include outright bans on their own city agencies using face surveillance technology. 

The Bay Area was not alone in proactively protecting residents from this particularly pernicious form of surveillance. Just weeks before Oakland’s City Council voted unanimously in support of banning the technology, the Metro-Boston community of Somerville, Massachusetts, passed its own standalone ban. With a similarly unanimous vote, Somerville became the second city in the nation to enact a ban, and the first East Coast city to do so. Before the end of 2019, Somerville would be joined by the nearby town of Brookline. Should a ban currently under consideration in Cambridge, MA pass, the Boston area could closely mirror the Bay Area’s trifecta of protected communities. Meanwhile, legislators in both Portland, Maine and Portland, Oregon (the largest cities in these two states) have introduced bills looking to ban their own local agencies from using face surveillance.

In a sign of intensifying battles ahead, November saw Microsoft dispatch representatives to challenge Portland, ME’s proposed ban. Also in November, EFF launched our About Face campaign. Organized in collaboration with community-based organizations in the Electronic Frontier Alliance—and other concerned civil society organizations—our About Face campaign aids residents in communities throughout the United States in calling for an end to government use of face surveillance.

State-Level Protections 

In early October, California Governor Gavin Newsom signed A.B. 1215 into law. Introduced by State Assemblymember Phil Ting, AB 1215 enacts a three-year moratorium on the use of face recognition or other biometric surveillance in combination with police body-cameras—or any similar recording devices carried by law enforcement. While A.B. 1215 officially goes into effect on January 1, 2020, the law is already credited with the planned suspension of San Diego’s Tactical Identification System (TACIDS) program—one of the largest, longest-running, and most controversial face recognition programs operated by local law enforcement in the United States. Lawmakers in New York State are considering legislation similar to California’s A.B. 1215, while less protective alternatives are being considered in Washington State and Michigan.

The Commonwealth of Massachusetts is positioned to go a step further. A pair of Massachusetts bills (S.1385/H.1538) would provide the most robust state-level protections yet: an indefinite moratorium on the use of face surveillance by government agencies within the commonwealth, until such time as the state legislature enacts an authorizing statute. Such a law would have to clearly outline what agencies are permitted to use the technology, require audits, protect civil liberties, and establish minimum accuracy rates to prevent disparate impact against women, people with darker skin, and young people. 

What About the Feds? 

There are currently no federal regulations regarding the use of face surveillance technology. During hearings held by the House Committee on Oversight and Reform, a bipartisan group of representatives including Rep. Alexandria Ocasio-Cortez (D-NY), as well as ranking member Rep. Jim Jordan (R-OH), said they intend to draft legislation addressing face surveillance. This legislation has yet to materialize. The continued failure of federal elected officials to address the threat that face surveillance poses to rights promised in the First, Fourth, and Fourteenth Amendments only serves to underscore the importance of local and state-level bans and moratoria. 

In June, the U.S. Government Accountability Office (GAO) issued an update to its 2016 report on the FBI’s use of face recognition. As EFF’s Surveillance Litigation Director Jen Lynch explained, it’s still terrible. Although GAO criticized the FBI in 2016 for failing to conduct accuracy assessments of its Next Generation Identification (NGI) database, or the searches it performs on its state and federal partners’ databases, the FBI has done little in the last three years to make sure that its search results are accurate. 

According to the report, the FBI also neglected to determine whether the face recognition systems of its external partners—states and other federal agencies—are sufficiently accurate to prevent innocent people from being wrongly identified as criminal suspects. While the FBI claims that it has no authority to set or enforce accuracy standards outside the agency, the GAO disagreed, given that the FBI is using these external databases as a component of its routine operations. 

The original GAO report heavily criticized the FBI for rolling out these massive face recognition capabilities without ever explaining the privacy implications of its actions to the public. The current report reiterates those concerns. 

The Road Ahead

These battles undoubtedly will continue on the state, local, and federal levels. We can expect that surveillance vendors and law enforcement agencies will continue to oppose legislation intended to protect the public from face surveillance and other forms of privacy-invasive surveillance technology. At the same time, communities across the U.S. will continue to band together to protect themselves from the harms of the ever-expanding panopticon of unwarranted government surveillance. Through efforts like our About Face campaign, and alongside our EFA allies—and other civil society partners—we will continue the push for stronger, enforceable protections. If your community-based group or hackerspace would like to join us in bringing an end to government use of face surveillance, please add your names to the About Face petition and join the Alliance.

This article is part of our Year in Review series. Read other articles about the fight for digital rights in 2019.

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