ANNAPOLIS, Md. — A bill making its way through the Maryland legislature would create a taskforce to study police use of surveillance technologies, such as facial recognition software.
The bill, HB 1065, establishing the Task Force to Study Law Enforcement Surveillance Technologies, passed in the Maryland House and is now under consideration by a Senate committee.
“This goes back to the citizens’ right to know,” Delegate Charles Sydnor, D-Baltimore, said in an interview with the University of Maryland’s Capital News Service. “It seems as if we are moving toward a surveillance state with the type of surveillance used by law enforcement.”
The Task Force would study law enforcement’s use of surveillance tactics and make recommendations about those tactics. Law enforcement departments would be required to disclose to the task force surveillance tactics that they are using and the task force would determine whether those tactics are constitutional.
“As new technologies are used by law enforcement, it’s unavoidable that the law must keep up with the new technologies to ensure our rights under the Constitution are not abrogated,” Sydnor, testified on March 28. “Unfortunately as technologies rapidly change, we in the legislature have been unable to keep up.”
Types of surveillance police use include the use of cell-site simulators, aerial surveillance and facial recognition technology, Sydnor said.
“I don’t necessarily have a problem with law enforcement using these technologies,” Sydnor said. “The concern is we need to make sure this is being used within the Constitution and the Fourth Amendment.”
The Maryland Image Repository System allows investigators to upload digital images to be searched against Motor Vehicle Administration driver’s license pictures or police booking and intake photos, according to the Department of Public Public Safety and Correctional Services.
The system provides a probability list of potential candidates that may match the uploaded image, according to written testimony from the Department of Public Safety and Correctional Services. The department does not have the ability to audit the system to determine why an investigator accessed it.
Under current guidelines, local law enforcement is required to develop policies for the use of the system.
The Department of Public Safety and Correctional Services written testimony said that only authorized users can access the system, similar to access requirements for the National Crime Information Center.
The National Crime Information Center is run by the FBI and is used by law enforcement to search crime reports such as at a traffic stop to determine whether a person is a wanted fugitive or is in possession of stolen property.
Sydnor on Thursday said he was not sure whether the bill would make it out of the Senate committee but said if the bill fails to pass this session he will reintroduce it for the next General Assembly.
Sydnor decided to sponsor the bill in response to the Baltimore Police use of an aerial surveillance aircraft, through the company Persistent Surveillance, without initially notifying city officials.
Toni Holness, public policy director for the ACLU of Maryland, said that the task force would help to ensure that Fourth Amendment protections are not violated by police use of new surveillance technologies.
“The development of these technologies means that law enforcement has a greater capability to watch and follow you,” Holness said. “We have to watch out for a surveillance state, which is likely to happen if their power goes unchecked.”
Holness added that the development of surveillance technologies has been outpacing the rate that the General Assembly can pass laws to regulate and keep up with it, which is why the task force is necessary.
Sydnor introduced another bill, HB 1148, in the House, but it received an unfavorable review by the House Judiciary Committee and was withdrawn. The Face Recognition Act would have established procedures for police use of facial recognition software and would have required police officers to have probable cause before using a facial recognition database.
Sydnor said he decided to sponsor the bill because he read a study, conducted by the Center on Privacy and Law at Georgetown University Law Center, which found that about half of all American adults are in police facial recognition networks.
“Individuals cannot avoid facial recognition software and it is too susceptible to misuse (by law enforcement),” Jeramie Scott, national security council for the Electronic Privacy Information Center said. “Facial recognition can destroy the individual’s ability to remain anonymous. It poses a risk to First Amendment rights.”
The Government Accountability Office in June 2016 published a report on the facial recognition database that is used by the FBI and other law enforcement agencies. The report said the Next Generation Identification-Interstate Photo System allows officers to search over 30 million photos to help with criminal investigations.
The report recommended changes to the system to make it more accurate. The GAO found that the FBI did not conduct tests on the system for the error rate or the detection rate for a list of possible matches under 50 people.
The system can return matches of two to 50 potential suspects. The system is operated by the FBI and is part of the agency’s Next Generation Identification system, which includes other technology, in addition to the facial recognition database, to identify suspects.
“I am not trying to take away tools from law enforcement,” Sydnor testified. “I’m trying to strike a balance between public safety and privacy.”
Several bills in this General Assembly session have addressed issues of increased police use of surveillance technologies.
Delegate Frank Conaway, D-Baltimore, introduced legislation that would have required the Baltimore Police Commissioner notify local and state officials, including Baltimore’s mayor, of the use of new surveillance tactics. A similar bill he also introduced would have required all law enforcement agencies in Maryland to report when they acquire new surveillance technologies.
Conaway’s legislation, HB 0058, which also received an unfavorable report from the House Judiciary Committee, was also in response to the a discovery in August 2016 that the Baltimore Police Department was using a small plane for aerial surveillance of the city starting in early 2016.
The Police Department did not notify Baltimore’s mayor or other city officials of the surveillance until months after the program began, drawing anger from Maryland residents and officials.
The surveillance was carried out by Persistent Surveillance, which, along with other proponents of surveillance technology, argues that the technology used in aerial surveillance only shows individuals as a single pixel, which is not enough to identify those people.
Privacy experts argue that the surveillance industry is competitive and the market will move companies to start developing a higher-resolution camera that would make it possible for police to personally identify individuals through aerial surveillance.
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