Some cities and states that were early to ban law enforcement from using facial recognition software appear to be having second thoughts, which privacy advocates with the Electronic Frontier Foundation (EFF) and other organizations largely attribute to an uptick in certain types of urban crime. Facial recognition bans in New Orleans and Virginia have seen at least a tentative reversal of course, with law enforcement now allowed to use the technology in some limited situations. And an attempt by the California Senate to make permanent a temporary facial recognition ban failed to pass, leaving the law set to expire at the end of 2022.
Facial recognition bans erode as crime fears spread across US cities
The fortune of the facial recognition ban in New Orleans directly reflects this developing trend in public sentiment. The ban was passed in December 2020, at the end of a year of heated protests sparked by the death of George Floyd while in custody of the police. Facial recognition software became a hot topic during this period as it was discovered that law enforcement agencies throughout the country were using it to monitor protests, potentially tracking participants for political reasons rather than suspicion of crime.
The New Orleans facial recognition ban also broadly removed “predictive policing” tools from law enforcement due to concerns of this nature, as well as “surveillance software” such as cellphone antenna simulators and tools that attempt to identify suspects by characteristics such as gait. All of this took place with right to protest as a central concern, and with people still largely isolating themselves at home due to the coronavirus pandemic.
Less than two years later, things are very different. A general rise in crime over the period, with a record set for murders in the city in 2021, has influenced both public opinion and political priorities. The New Orleans City Council voted by a smaller margin than the one that passed the original facial recognition ban, 4-2 (vs 6-1 for the 2020 ban), to make this software available to officers with some restrictions in place. Officers will have to have a superior sign off on any requests to use it, and it can only be used to investigate certain types of serious crime. Restrictions on the various “predictive” and “surveillance” tools were also lifted with this vote.
Another reversal has come in the state of Virginia, which only just last year placed a facial recognition ban on use by local law enforcement agencies and on school campuses. The ban was drafted in response to the Norfolk and Virginia Beach police departments using Clearview AI facial recognition software without the knowledge of city leaders. Like New Orleans, Virginia has reversed that position and allowed situational law enforcement use of the technology; the impacted agencies can once again access the Centralized Criminal Image System (which state police had retained access to during the ban) and use software without obtaining authorization from the state legislature. But there are some added safety rails, such as only using software rated by the National Institute of Standards and Technology (NIST) that has an accuracy rating of at least 98% across all demographic groups, and providing additional corroborating evidence when using it to seek a warrant.
Increased support for law enforcement in California puts fate of facial recognition software in doubt
Outside of New York City, no place in the US has been as publicly associated with the uptick in property crime in recent years as California has. A state law reducing charges for shoplifting under $950 worth of merchandise to a misdemeanor, a crime that busy and underfunded city police departments often do not even bother turning up to, has largely been blamed for a rash of outright looting of various chain stores that has gone viral on social media as bystanders film videos of brazen incidents. That law was altered in August 2021 to make all shoplifting a potential felony, but with the caveat that an incident has to be “organized” in nature with intent to sell if it is under $950.
Homicides and rates of other serious crime have also gone up in the state since 2020, putting a facial recognition ban passed that year in jeopardy of sunsetting at the end of 2022. What was once believed to be a slam dunk to make permanent failed in a state senate vote in February of this year.
About five states and 20 cities across the country still have a facial recognition ban of some sort in place for law enforcement. Adam Schwartz, a senior staff attorney at the Electronic Frontier Foundation, told CNN reporters that he believes this is part of a natural “pendulum swing” back as crime rates rise but is optimistic that the general public sentiment is still against the unchecked use of these tools in public spaces.