New legislation aimed at regulating the use of facial recognition and other forms of surveillance technology could test Baltimore lawmakers’ authority over their own Police Department, which is stuck in limbo in the wake of residents’ vote last year to bring the department under city control.
Twin bills introduced by Councilman Kristerfer Burnett would require both City Council approval and public input before the Police Department or other agencies can purchase surveillance technology. The package would also install new guardrails on the use of facial recognition in Baltimore, establish a commission to help regulate surveillance tech and create requirements for public reporting.
Though the legislation would establish strict regulations on the use of these high-tech surveillance tools, it would not ban them. A moratorium, which applied to Baltimore residents, businesses and most city agencies but not to the Police Department, lapsed at the end of last year.
“It is crucial for us as policymakers to address the historical exploitations as well as to be proactive to prevent” exploitation in the future, Burnett said when he introduced the two bills at Monday’s City Council meeting. Burnett cited research showing racial biases in facial recognition technology against Black and brown people and stressed the importance of adopting regulations now to get ahead of possible abuse as the technology gains traction.
These proposed regulations on surveillance tech come amid disagreement and confusion over just how much authority City Council has to write laws governing the Police Department. Last November, Baltimore voters overwhelming approved a charter amendment to make the department a city agency, granting new authority over the department to the city, which for 160 years had been the only jurisdiction in Maryland without total control over its Police Department.
But Mayor Brandon Scott and his legal team have said they need more time to fully enact local authority because of a much-debated line still in the city charter that bars city leaders from passing laws controlling the Police Department. Resolving this gray area for the City Council will require action from the Maryland General Assembly, an effort that fell short this session.
Councilman Zeke Cohen raised the “murkiness” around jurisdiction over the police at City Council meeting Monday afternoon, asking whether Burnett’s legislation could be the “test case” for the legal status of the department. Other council members responded that the surveillance legislation could very well force the question of Baltimore’s authority over its Police Department.
“Therein lies the question,” said Councilman Mark Conway, who laid out two possible outcomes if the city adopts the regulations: Nobody challenges it and it goes into effect, or someone sues, the question of police jurisdiction goes to a judge and the city gets its answer.
Burnett, who has worked to rein in facial recognition technology in Baltimore for several years, said he didn’t intend for his legislation to test questions of local control, but expressed confidence that the regulations fall within the city’s new jurisdiction. Police Commissioner Michael Harrison has said he views facial recognition technology as a tool, rather than a strategy, noted Burnett, a distinction that could make a difference for the city in court.
Attorney General Anthony Brown also weighed in on the question in a March letter affirming a plan that would have implemented local control more quickly, arguing that the City Council now has the jurisdiction to pass laws governing its Police Department while acknowledging the risk for lawsuits.
The first of Burnett’s bills focuses procurement on surveillance technology by city agencies and would establish a commission to help regulate the tools.
The second proposal is more wide-reaching, imposing regulations on the use of facial recognition technology by both government agencies and private entities. The legislation is meant to prevent potential abuse of the controversial technology, Burnett said, and includes deadlines for the destruction of images and data as well as restrictions on their distribution.
The proposal also lays out numerous constraints on the use of facial recognition technology by the Baltimore Police Department, in particular, including barring use of the tool at large public gatherings such as protests or political rallies.