Baltimore City seeks to regulate facial recognition technology

BALTIMORE -- Baltimore City Council members are debating how best to address and determine the prevalence of facial recognition.

Two bills—23-0377 and 23-0379—seek to regulate the technology.

"We need to make sure there is no overreach and the government is protecting our citizens—all of them," said the bill's sponsor, councilmember Kristerfer Burnett.

Critics point to privacy concerns and the technology being vulnerable to bias.

"We, the biased people, create the systems," Martaze Gaines of the Campaign for Justice, Safety, and Jobs said after testifying in favor of the regulation.

Andrew Northrup of the Maryland Office of Public Defender quizzed Council members and those in the audience in the hearings to try to match individuals in photo arrays to show human flaws with the technology.

Baltimore's moratorium on facial recognition expired last year.  

Bill 23-0379 would require written notification of data collection at entrances to buildings if the technology is in use. Burnett also wants businesses to register to use the technology.

"We don't fully know the answer to that and that's what we're seeking to uncover is how large-scale is this?" Burnett said.

The bills would create surveillance reporting guidelines. Bill 23-0377 seeks to establish a Community Advisory Commission.

Initial drafts of the bill received pushback from the City Law Department over issues with state and federal law. 

Burnett dropped portions of the bill that included data deletion, whistleblowing, and distribution of data.

"In the name of trying to create a safer society, we actually may be creating more harm through misidentification, through the erosion of civil rights and civil liberties, and misuse and abuse of that data," Burnett said.

State lawmakers failed to pass a measure this year that would have established further law enforcement guidelines over use of facial recognition.    

Following last month's double shooting at Bowie State University, school officials listed facial recognition improvements as part of its enhanced safety plan. 

Meanwhile, some private businesses like Madison Square Garden in New York City have already used it to deny entry to those involved in litigation against it.

What's included in the proposed bill?

Under the proposed bill, any person in possession of facial recognition data would be required to permanently destroy it within three years of the date it was obtained, or within 30 days of receiving a signed request to destroy the data from the individual, or a legal representative.  

The bill also mandates that anyone who collects facial recognition data can not distribute the data without consent, a valid warrant or subpoena - unless the data is being used to prevent fraud.  However, collecting facial recognition data would be allowed in situations where a written notice of the collection is posted at the entrance to an area.   

Additionally, the bill says that a person who collects facial recognition data must provide the data to the individual in question free of charge at the request of the person, or their attorney.  

You can view the full bill here.

Setting limitations on facial recognition technology could become a priority, as city leaders have already expressed concerns about face detection and algorithmic bias. 

That concern has increased due to the prevalence of artificial intelligence, because AI products are trained on human data.  

Legal Challenges

While the proposed bill sounds like progress for privacy protection, the Baltimore City Council Law Department says the proposed bill conflicts with existing state law. 

In a memo, the Baltimore City Council Law Department outlined several legal issues with the proposed bill.

Most notably, the memo says that no local government can establish guidelines for disclosing information that differs from Maryland state law.  

The department says the bill conflicts with the Maryland Public Information act (PIA) which dictates when local governments can retain personally identifiable information, when it can be shared, and who it can be shared with. 

Another point of conflict, is that the proposed bill would disallow the sale or lease of facial recognition data.  According to the law department, such a law could be a violation of the Commerce Clause in the United States Constitution - which states that "Inter-State commerce shall be free and untrammeled."