The twin proposals, which still face consideration by the City Council and the mayor, would require the police department to get approval before acquiring any new surveillance technology. An oversight board would also be established to monitor the city’s use and ensure compliance with any regulations.
Burnett’s legislation would also implement new restrictions on the use of facial recognition technology, implementing regulations on how its data is stored or sold, and requiring public notifications about its use. The proposed law would not ban the use of the technology, which can capture, store and match images of faces, but police would not be allowed to use facial recognition in “protected activities” such as protests.
Burnett argued Monday that both technologies are overused on Black and brown communities.
“This doesn’t say the technology can’t be used,” he said. “It’s just shining a spotlight on how it’s used.”
Baltimore has made headlines in the past for its use of both facial recognition and surveillance technology. In 2016, the American Civil Liberties Union released documents revealing Baltimore’s use of the technology to monitor protesters during the unrest in 2015 in the aftermath of Freddie Gray’s death.
The city also flew a surveillance plane that circled the city for a six-month period in 2020. Owned by Persistent Surveillance Systems and paid for by wealthy benefactors, the plane was sold to the city as a tool to help police investigate homicides, nonfatal shootings, armed robberies and carjackings, but it quickly became criticized as excessive government overreach.
The Maryland chapter of the American Civil Liberties Union sued the police department in April 2020 over the program, citing privacy concerns, and sought an injunction to ground the planes. Last June, the 4th Circuit U.S. Court of Appeals in Richmond, Virginia, ruled in favor of the plaintiffs.
The plane was grounded by Mayor Brandon Scott and records were disposed of as part of a settlement with the exception of those who were part of ongoing prosecutions.
Baltimore continues to operate a robust network of over 750 ground-based surveillance cameras across the city.
Burnett’s proposed bills would be the first test of Baltimore’s newly established local control of its own police department, which legal officials have acknowledged is a gray area for the city.
Since a voter-approved charter amendment took effect Jan. 1, local control of the police department has been law in Baltimore.
Almost immediately after the amendment took effect, city law officials raised concerns that more language needed to be repealed from the city charter for the mayor and City Council to have complete authority over the department. Bills introduced in the Maryland General Assembly proposed removing a line that prohibits anyone from impeding the powers of the police commissioner, but the legislation became mired in arguments about how far the repeal should go.
A legal advisory from the Maryland attorney general’s office found that the City Council and mayor have legislative authority over the department but that certain ordinances may open the city to the possibility of being sued.
During a midday meeting of the council Wednesday, Councilman Zeke Cohen asked Burnett whether he believes the council has the necessary authority to pass the bills given the “murkiness” surrounding the local control implementation.
Council President Nick Mosby acknowledged the gray area that exists around local control.
“Does it go to court?” Cohen asked.
“Therein lies the question,” said Councilman Mark Conway, who was one of several council members who lobbied for clarification of the law at the state level earlier this year.
“We maybe finally get an answer by a court,” Mosby said.
Burnett said he did not take leaps with the proposed legislation but instead modeled it after proposals at the state and federal level. Proposals to limit the use of facial recognition technology have been repeatedly introduced at the state level but have failed to gain traction with state legislators.
Burnett said the city should not continue to wait for the state to act. If the state chooses to legislate, it will supersede local law anyway, he argued.
The latest proposals are not Burnett’s first attempt to regulate the use of facial recognition in Baltimore.
From June 2021 to December 2022, Baltimore blocked residents, businesses and most of city government from using the technology, which can capture, store and match images of faces. A notable exception was made for the city’s police department which was, at the time, still a state agency beyond council control.
Police officials argued they make use of the technology via the Maryland Image Repository, a state-administered system that allows police to search images of state prison inmates and police mug shots for investigative purposes. Maryland also uploads all driver’s license photos to the system.
Last year, Burnett commissioned a research paper from the Legal Data and Design Clinic at the University of Baltimore’s law school. Students there analyzed policies from Illinois, Massachusetts, Virginia and other states where legislation has been passed regulating the use of facial recognition. Studies have raised concerns about the technology’s accuracy, particularly with Black and brown faces, prompting some states to ban the technology or develop a regulatory framework.
Burnett’s facial recognition bill has been assigned to the council’s Health, Environment and Technology Committee. The surveillance bill will be heard by the Public Safety and Government Operations Committee.
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