At the request of Mayor LaToya Cantrell, the New Orleans City Council introduced an ordinance on Thursday to severely roll back local restrictions on law enforcement surveillance that were put in place only 14 months ago.
The proposed ordinance, if passed, would largely reverse the council’s blanket bans on the use facial recognition and characteristic tracking software, which is similar to facial recognition but for identifying race, gender, outfits, vehicles, walking gait and other attributes. One provision also appears to walk back the city’s ban on predictive policing and cell-site simulators — which intercept and spy on cell phone calls — to locate people suspected of certain serious crimes.
That provision could, for the first time, give the city explicit permission to use a whole host of surveillance technology in certain circumstances, including voice recognition, x-ray vans, “through the wall radar,” social media monitoring software, “tools used to gain unauthorized access to a computer,” and more.
The current restrictions on surveillance were passed in December 2020, shortly after The Lens reported that the New Orleans Police Department was secretly using facial recognition, despite years of denials. Those restrictions, contained in an ordinance sponsored by then-Councilman and current District Attorney Jason Williams, represented the city’s first real attempt to regulate government surveillance at the local level.
But from the moment it passed, NOPD Superintendent Shaun Ferguson wanted the council to reverse it, especially the ban on facial recognition. Earlier this month, as the city grappled with a violent crime surge, Cantrell came out in support of rolling it back as well. And Councilman Eugene Green agreed to sponsor an ordinance on the administration’s behalf. Council members Oliver Thomas and Freddie King have also signed on as co-sponsors.
If the council approves the ordinance, it would come as a major blow to advocates with the Eye on Surveillance Coalition, a local privacy and anti-surveillance group that led the effort to pass the 2020 regulations.
“City Council banned the use of facial recognition and three other surveillance technologies, in large part because they have been proven rife with racial bias and have resulted in the wrongful arrest and imprisonment of people of color across the country,” the coalition said in a statement earlier this month.
A federal study of 189 different facial recognition algorithms found that the software was 10 to 100 times more likely to misidentify non-white faces. Predictive policing software has also been accused of perpetuating bias by relying on historic police data, which is skewed based on decades of racist and biased policing tactics. Even for tools that don’t have clear inherent bias, some argue that they augment the power of a criminal justice system that is rife with bias.
The coalition has also raised concerns about the potential of these technologies to violate civil rights, and argued that there isn’t sufficient evidence to show these technologies actually make communities safer.
“They also continue to distract from addressing the root causes of crime,” the statement said. “These tools don’t prevent crime, yet we continue to pour money into them instead of affordable housing, job training, nutritious food options, and better schools.”
The NOPD has already proven successful at opposing surveillance restrictions. Even the current regulations are far less restrictive than what was originally proposed by Councilman Williams and Eye on Surveillance.
The original ordinance would have created ongoing oversight for surveillance use, including annual reporting and council approval of new surveillance technologies. But those oversight measures were stripped from the ordinance at the request of the NOPD.
Even the pared-down version of the ordinance was a landmark moment for privacy legislation in New Orleans, putting the city on a short but growing list of places that actively regulate surveillance at the local level. But privacy advocates argue that it still didn’t go far enough, and that the reversal proposed by Cantrell would send the city in the wrong direction.
“At minimum, the technology ordinance passed in 2020 must remain in place — we cannot afford to go backward,” the Eye on Surveillance statement said.
For more than a year, Ferguson has said that if the surveillance bans were reversed, the NOPD would write a policy governing its use of facial recognition. According to Cantrell spokesman Beau Tidwell, that policy isn’t finished yet, and the NOPD is working with the U.S. Department of Justice and a monitoring team appointed as a part of the police department’s long-running federal consent decree.
Tidwell echoed past statements from Ferguson — that although facial recognition has the potential for racial bias, so too does releasing a suspect photo and asking for citizen tips.
“Like a CrimeStoppers tip, evidence obtained from surveillance technology alone shall not be sufficient to establish probable cause for the purpose of effectuating an arrest.”
In a written statement, Green’s Chief of Staff Sandra Thomas said that introducing the ordinance “begins the process of review, gathering more info, & possible amendments.”
“Today is the first reading of the ordinance which begins the process of review, gathering more info, & possible amendments. We look forward to the process and hope to achieve an end which productively assists law enforcement and makes New Orleans a safer city.”
The four pieces of surveillance technology in the 2020 ordinance are currently banned in practically all situations. The amendment under consideration would carve out big exceptions for all of them, and explicitly allow the city to use new forms of surveillance that weren’t previously addressed in city law.
First, it changes what technology the city can own and use itself. Facial recognition would be allowed in any investigation into violent crimes, sex crimes or crimes against a juvenile. The technology would also be allowed “for the purpose of authenticating a City official on an electronic device, such as a cell phone or tablet.”
Another part of the proposed ordinance says that city officials can’t be prohibited from using any surveillance technology, as defined in city law, when trying to locate subjects of arrest warrents for violent crimes, sex crimes or crimes against a juvenile.
That could include otherwise banned technologies like cell-site simulators and predictive policing software. It could include other technologies as well. The definition of “surveillance technology” in New Orleans municipal code is broad, and provides other examples such as x-ray vans and “tools used to gain unauthorized access to a computer.”
The proposal would further allow the city to use facial recognition and characteristic tracking software to investigate any crime whatsoever as long as the city doesn’t own and use the software directly. This allows the city to make requests to outside agencies that are allowed to own and operate those technologies.
That’s significant for two reasons. First, for the two years that the NOPD previously used facial recognition, it did so indirectly, by submitting requests to a state agency called the Louisiana State Analytic and Fusion Exchange, or Fusion Center. The amendment would allow the NOPD to restart those requests. Second, the city has shown it has a fairly liberal interpretation of what it considers to be a criminal investigation.
Recently, the Lens reported that the city used its surveillance camera system to contest a city’ employee’s workers comp claim and fire employees. The city argued it was justified because although the evidence was not gathered as part of an NOPD criminal investigation, the conduct in question was still a potential crime — workers comp fraud.
Lastly the proposal would allow the city to use “social media or communications software or applications for the purpose of communicating with the public, provided such use does not include the affirmative use of any face surveillance.” The Lens asked Tidwell and Green why this was included and what it was meant to allow, but neither responded.