The New Orleans Police Department has confirmed that it is utilizing facial recognition for its investigations, despite years of assurances that the city wasn’t employing the technology.

In a statement to The Lens last week, a department spokesperson said that although it didn’t own facial recognition software itself, it was granted access to the technology through “state and federal partners.”

NOPD spokesman Kenneth Jones declined to provide a list of those federal and state partners, telling The Lens in an email that “we would prefer not to at this time.” He indicated, however, that the FBI was on that list.

“As for particulars on Facial Recognition hardware and software, please contact the Federal Bureau of Investigations,” Jones said. (An FBI spokesperson declined to comment on “specific products or services the FBI may or may not purchase or use”)

Jones also indicated that the Louisiana State Police was on that list of partners, but said he could not confirm. Louisiana State Police spokesman Nick Manele said that while the Louisiana State Analytical & Fusion Exchange does work with the NOPD, he could not “provide specific information on our investigative tools and procedures.” 

Jones told The Lens that the NOPD only used facial recognition for “violent cases,” but that “documentation of frequency of use of Facial Recognition is not currently available.” Asked whether there was any written policy or procedure regarding the technology, Jones responded by saying that NOPD Superintendent Shaun Ferguson “is currently working with Councilman [Jason] Williams on a policy as to when facial recognition tools should be used.”

Jones didn’t respond to repeated questions about how long the NOPD had been utilizing facial recognition. 

For years, and under two separate mayoral administrations, city officials responded to questions about facial recognition by saying that the city didn’t own any software itself, or by talking specifically about the Real Time Crime Center. The Real Time Crime Center, or RTCC, is the city’s video surveillance hub and has a policy against the use of facial recognition. But the RTCC is part of the city’s Department of Homeland Security and Emergency Preparedness, and its policies don’t apply to the NOPD. 

In July, the City Council held a hearing on a potential surveillance ordinance that, among other things, would ban the use of facial recognition. 

“Of course the city doesn’t deploy any facial recognition technology in a law enforcement purpose,” RTCC administration Ross Bourgeois told the council. “The city doesn’t have any of that technology available for our use.”

Later in that meeting, Councilwoman Helena Moreno asked about the difference between facial recognition and characteristic tracking software. She directed her question at the city’s Chief Technology Officer Jonathan Wisbey.

“Jonathan, we don’t have either of these in the city, right?”

“We do not currently employ any technology that does that in 2020,” Wisby said.

“There certainly appears to be consensus around not utilizing the face surveillance systems or characteristic tracking software, that that’s not something we’re interested in,” Moreno said. 

In November, the ACLU of Louisiana submitted a public records request with the city for documents and communications “regarding the use of facial recognition.” The city responded this week by saying “The Police Department does not employ facial recognition software.” No documents were handed over and the request was closed.

Bruce Hamilton, an attorney with the ACLU, told The Lens that whether or not the city’s statements were technically true or not, the end result is that public officials, citizens and watchdog groups were under the false impression that the city was not working with facial recognition software. 

“This is a distinction without a difference—the result is the same, that the City’s law enforcement agency is using facial recognition, even if it is using other agencies to do it,” he said in an email. “This is a disturbing admission by NOPD, indicating that the department and other city officials have repeatedly misled the public and surreptitiously deployed facial recognition software without public approval or oversight.”

The NOPD would not directly respond to questions about whether it would review its response to the ACLU’s public records request.

“The term employ used in the [public records request] response might’ve referred to ownership of the tool itself, which we don’t,” Jones said. “I apologize for any misunderstanding. … Again, the word ‘employ’ was used in the context of ownership. The consensus between the PRR and NOPD response is that the NOPD does not own Facial Recognition tools.”

Dictionary definitions of the word employ do not denote ownership. When applied to inanimate objects, the word is more commonly defined as “to use” or “to make use of.”

In a Thursday letter to the NOPD, the New Orleans Office of Independent Police Monitor said it wanted to audit the department’s use of facial recognition, and requested the department hand over a wide array of documents and records related to facial recognition.

Theo Thompson, a member of the local citizen watchdog group Eye on Surveillance, said that he hoped this news convinced hesitent council members of the need for comprehensive surveillance regulation.

“There have been many discussions around whether or not the city has been using facial recognition and the answer we were given was always no. There is a continued lack and flat out neglect of transparency.”

‘This technology is flawed’

The use of facial recognition came to light in part because of the council’s recent work on a proposed ordinance meant to limit how the city can use surveillance technology, crafted in partnership with local citizen watchdog group Eye on Surveillance. The ordinance is sponsored by Councilman Jason Williams, who is currently heading to a Dec. 5 runoff election for Orleans Parish District Attorney against former Judge Keva Landrum. 

Williams has run as a criminal justice reformer, and the surveillance ordinance is one of several criminal justice reform ordinances he’s introduced this year, with limited success. 

Williams’ chief of staff, Keith Lampkin, told The Lens he found out the NOPD was using facial recognition during a call with Police Superintendent Shaun Ferguson. Lampkin said he was communicating with the NOPD to make sure that the ordinance wouldn’t inadvertently and unnecessarily cause issues for the police. He wasn’t expecting facial recognition to be a problem.

“We were working under the understanding and under the representation that we were not using facial recognition as a city, and therefore there would be no issue with an outright ban on facial recognition technology in our surveillance ordinance,” Lampkin told The Lens. “That call was the first call when we heard directly from the superintendent, directly from the NOPD, that they were in fact using facial recognition technology.”

That call occurred just hours before Hurricane Zeta made landfall on Louisiana’s coast and caused power outages in the vast majority of New Orleans. Storm recovery quickly took priority, Lampkin said, but added that “there’s definitely a clean up conversation to be had.”

“That kind of 11th hour revelation, for lack of a better word, when we’ve been told the opposite, obviously impacted our process. But it’s new information that we’re going to engage with them over the next couple weeks to find out what the hell is going on and how far reaching it is.”

The City Council was expected to vote on the surveillance ordinance at a meeting last week, but it was deferred. 

City Councilman Jay Banks was also surprised to hear about the NOPD’s admission. 

“I still have not been told we’re using facial recognition and I still have reservations about it,” he told The Lens. “If it turns out that we are using it I’m disappointed number one that we’re using it and number two that we were told that we weren’t.”

At the June surveillance hearing, Banks spoke in passionate opposition to the use of facial recognition. 

“I am vehemently opposed to facial recognition technology for arresting folks because in too many instances it proves not to work.”

Banks raised the case of Robert Julian-Borchak Williams, a Detroit man who was wrongly accused of theft and charged with retail fraud after facial recognition software had incorrectly identified him from a crime scene surveillance photo. He was arrested in January on his front lawn in front of his wife and two children and was kept in custody for 30 hours.

The prosecutor in the case ended up dismissing the charge and later apologized following a report from The New York Times. The prosecutor’s office said that the case should never have gone so far, citing the “unreliability” of facial recognition software, “especially as it relates to people of color.”

Facial recognition has been criticized over privacy concerns and for providing a powerful tool to historically racist law enforcement agencies. But there is also evidence showing that the software itself is often racially biased by misidentifying Black people and people of color at a higher rate than white people. 

Late last year, the National Institute of Standards and Technology — a federal government agency — released a study that found that the majority of commercial facial recognition software was racially biased, misidentifying Black and Asian people at 10 to 100 times the rate of misidentification for white people. The study tested 189 pieces of software from 99 different developers. It found that misidentification problems were worst for Native Americans.  

At the June council meeting, Banks said that even though Williams’ case in Detroit was dismissed, there’s no way of knowing the reverberating impacts of being arrested in front of his family or spending more than a day in jail. 

“The trauma of seeing her father arrested may never leave that child and we have no way to know how it will continue to manifest itself in her,” he said. “This month Amazon, Microsoft and IBM all announced or paused using their facial recognition offerings for law enforcement. There’s a reason for that. They acknowledge this technology is flawed.”

No existing policies

At the June City Council hearing on the surveillance ordinance, Wisbey told the council that instead of blanket bans on certain technologies, he recommended creating clear regulations with actionable consequences.

“I think that there is this potential for abuse when you use any type of technology really, not just these surveillance technologies,” Wisbey said. “The way we have tried to mitigate those risks … is to really look at the policies governing that. And to say rather than, ‘This technology is bad or evil or not something we should ever use,’ say ‘You know what, this technology is potentially problematic so we need to be very prescriptive of how we use it. And we need to ensure there are real life consequences if someone violates those regulations.’ “

But as the department confirmed, the NOPD has no policy or written procedures for its use of facial recognition, though it has already been using the technology. Jones, the NOPD spokesperson, told The Lens that Ferguson was currently working on creating that policy.

It’s also unclear what kind of tracking and auditing the NOPD does for its facial recognition use. When The Lens asked how frequently the NOPD utilizes facial recognition, Jones said that documentation “is not currently available.”

“The fact that ‘documentation of the frequency of use’ of this technology by NOPD is ‘currently unavailable’ only underscores the fact that no City official—including NOPD officers—should be using any surveillance technology without oversight and transparency,” Hamilton told The Lens. “The residents of this City deserve to know when surveillance is being used, by whom, and for what purpose.”

Jones told The Lens that facial recognition isn’t used to determine probable cause for an arrest.

“It’s important to note that the use [of] Facial Recognition software is for investigative purposes only not to determine probable cause for a crime.”

Hamilton wasn’t comforted by that statement, saying it was “frankly absurd.”

In the case of Williams’ false arrest in Detroit, the Detroit Police Department gave a similar defense, saying that the department does “not make arrests based solely on facial recognition,” according to the New York Times. According to the paper, the document that initially identified Williams to the police said in bold letters, “It is an investigative lead only and is not probable cause for arrest.”