California at Crossroads Over Policing and Facial Recognition

California is grappling with the best approach to regulate the use of facial recognition technology after a three-year ban on its use in police cameras expired in January.

The debate comes as policymakers grow increasingly concerned about negative consequences from biometric scans that can result in discrimination and an intrusion in privacy. For example, such identity checks at places from Madison Square Garden to US airports are coming under greater scrutiny as the technology becomes more prevalent.

The Golden State has been at the forefront on concerns over the software. In 2019, San Francisco became the first major city in the nation to ban police use of facial recognition technology. The California legislature soon followed with its three-year moratorium.

On Tuesday, a key Assembly committee voted to continue the ban.

But others are calling for a re-evaluation. In fact, the same lawmaker behind the original ban is proposing formal rules and standards for how police can use the technology under a new bill (AB 642), noting how instrumental it can be to solve cases. That bill would set limits on when and what type of technology can be used.

“This Facial Recognition Act is going to be the most stringent regulation of facial recognition throughout the country,” said Assemblymember Phil Ting (D) of San Fransisco when introducing the bill.

Privacy and police reform advocates are calling to renew the ban for another decade given the risks for abuse. The committee debate Tuesday indicated that is the current sentiment of the legislature.

“The only guardrail that works with facial recognition for the police is a total prohibition,” said Carmen-Nicole Cox, director of government affairs at ACLU California Action.

Pushback

While there’s been documented cases about how facial recognition helped solve cases quickly elsewhere in the country, there’s also been instances where people were wrongly arrested because of it, said Cox.

Even if the technology was 100% accurate, there would be a chilling effect on free speech if people knew they were under mass surveillance and could be identified, Cox said. She referred to a 2022 study by Georgia State University, which found that facial recognition use contributed to greater racial disparities in arrests.

“We’ve been sharing that this experiment, that will be borne largely on the backs of Black and brown bodies, is contrary to many of the laws, quite honestly, that the legislature has passed recently,” Cox said.

The ACLU is pushing AB 1034, introduced by Assemblymember Lori Wilson (D). The bill would put in place another moratorium on the use of facial recognition in police cameras until 2034.

The Assembly Committee on Public Safety on Tuesday approved Wilson’s 10-year ban and it will head to the Committee on Privacy and Consumer Protection, a sign that it has momentum. Democrats moved the legislation forward over the objection of Republicans.

“The fact that one person could be misidentified and brought into the criminal justice system, it’s just one person too many,” said Committee Chair Reginald Jones-Sawyer (D), adding it’s still too early to allow the technology until it’s perfected.

Ting’s bill to regulate use of facial recognition technology was withdrawn from Tuesday’s hearing. Republicans on the public safety committee indicated they would have preferred that approach instead of a hard ban.

“I do think that the points of mistaken identity need to be taken very seriously,” said Assemblymember Tom Lackey (R). “But at the same rate, that doesn’t mean you eliminate the technology.”

The debate between regulation versus prohibition of police use of facial recognition technology has occurred in past sessions with no resolution. A 2022 attempt at a permanent ban failed amid law enforcement opposition, but previous measures to regulate facial recognition have been unsuccessful as well due to pressure from social justice advocates.

Regulating Facial Recognition

Ting advocated for a regulatory approach, noting even lawmakers who supported his three-year moratorium couldn’t get behind a permanent ban last year. Across the country, some states and cities have backed off similar bans with increased public attention on tackling crime.

The accuracy of facial recognition tools has also markedly improved, according to ongoing research by the National Institute of Standards and Technology (NIST), easing concerns that the software could misidentify people.

Mistakes can still happen, so the Ting bill would require a facial recognition system used by police to be evaluated by the NIST and receive a 98% positive accuracy score. The bill would mandate written policies on its permitted use, limit who can access the software, and require annual reporting and record keeping of all queries.

Ting’s bill also would ban using facial recognition to identify a person solely due to race, religious belief, or any protected characteristic. Officers couldn’t use scans to identify a person engaged in constitutionally protected activities, such as protesting, when no laws have been broken. More importantly, a match couldn’t be the sole reason for an arrest or search.

Supporters, including law enforcement groups, call the bill the right balance between safeguarding rights while giving police an indispensable tool.

Facial recognition technology, or FRT, “has unprecedented ability to combat criminal activity, identify persons of interest, develop actionable leads and close cases faster than ever before,” said San Leandro Police Department Chief Abdul Pridgen, representing the California Police Chiefs Association. “The legitimate use of FRT can lead to significant benefits for public safety.”

Even if the ACLU gets their 10-year ban passed, Ting believes his legislation can complement that and pass alongside the moratorium. While the Wilson bill would ban only body cameras, the Ting measure would regulate all types of facial recognition use, such as with cameras posted near hospitals or abortion clinics, he said.

Ting said he will continue to work to pick up support for his measure as the debate continues, arguing that there needs to be a comprehensive approach to police oversight with the technology.

“We cannot let the perfect be the enemy of the good,” he said.

To contact the reporter on this story: Titus Wu in Sacramento, Calif. at twu@bloombergindustry.com

To contact the editors responsible for this story: Bill Swindell at bswindell@bloombergindustry.com; Fawn Johnson at fjohnson@bloombergindustry.com