A majority of the New Orleans City Council Criminal Justice Committee on Wednesday voted against an ordinance that would severely roll back local restrictions the city placed on police and government surveillance in 2020.
Despite the vote, a co-sponsor of the ordinance, Councilman Eugene Green, said he planned to bring the ordinance to a full council vote next week. He said he would be offering amendments to respond to criticisms lodged by privacy advocates and fellow council members.
The ordinance, written by Mayor LaToya Cantrell’s administration, would vastly expand the city government’s authority to use surveillance technology, and allow the city to utilize currently banned technologies including facial recognition and predictive policing.
Council members Helena Moreno, JP Morrell and Lesli Harris all voiced concerns about the broad language of the ordinance. The three didn’t completely shut the door on the New Orleans Police Department’s request for the council to loosen some of the rules and allow the use of advanced surveillance technology, such as facial recognition, for certain crimes.
But they said that the ordinance as written would give the city government far too much authority to employ advanced and controversial surveillance tools. And they said the ordinance’s current language could allow non-law-enforcement officials to use the technology.
“The ordinance failed since it went far beyond public safety and law enforcement purposes,” the City Council said in a written statement released after the meeting. “The ordinance drafted by the Mayor’s administration allowed non-law enforcement agencies to use the technology for so-called ‘investigations’ which could include spying on employees and residents.”
Several officials said that they would only be in favor of something that was written in consultation with, and got the thumbs up from, local privacy groups such as the Eye on Surveillance Coalition, which voiced its opposition to the ordinance during a presentation on Wednesday.
“I encourage NOPD, organizations like ACLU, and Eye on Surveillance to sit together to find a solution that will help fight crime with guardrails for ensuring that individuals’ rights are not violated,” Councilwoman Leslie Harris said in a statement.
A lengthy hearing on the ordinance — packed within an even longer eight-hour Wednesday meeting — ended in a fairly confusing fashion, as Morrell noted in a Twitter thread after the meeting. Though all four committee members present on Wednesday voted to defer, the vote has no legal effect, and the ordinance will likely move forward to full City Council consideration next week. (The fifth committee member, Councilman Freddie King III, was absent.)
As Morrell explained during the meeting, the intention of the vote was to trap the ordinance in committee, and ensure that it would have to go through another committee hearing and vote before going to a final vote before the full council. That type of maneuver, however, doesn’t appear to be allowed in the City Council’s rules.
With the ordinance now expected to move to the full council, it’s shaping up to be a close vote.
The ordinance is being co-sponsored by three council members — Green, Thomas and King. Three other council members came out as firmly opposed to the ordinance as written on Wednesday. The seventh member, Councilman Joseph Giarrusso, told The Lens on Wednesday evening that he shares some of the concerns voiced by his fellow council members and saw some “red flags” in the legislation related to the broad authority it grants to the city.
The three council members who opposed said they would be open to considering an ordinance that was significantly more narrow and specific.
“I believe the people of this city have been deceived about the real need for this ordinance,” Moreno said in a statement. “The Department of Justice has spelled out some specific, narrow circumstances that surveillance may help law enforcement and I’d be pleased to work on any process that provides an accountable, warrant-authorized path to apply technology where it would actually help make our city safer.”
‘Any City official’
NOPD Superintendent Shaun Ferguson has argued for at least a partial reversal of the city’s surveillance restrictions since the moment they went into effect in 2020. But the Cantrell administration increased its efforts to reverse the law earlier this year as the city began to grapple with an uptick in violent crime.
Councilman Green, on behalf of the Cantrell administration, introduced an ordinance in February to do just that.
The ordinance as currently written would largely reverse the council’s blanket bans on the use of 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 would also walk back the city’s ban on predictive policing and cell-site simulators — which intercept and spy on cell phone calls.
That ordinance could also, for the first time, give the city explicit permission to use a whole host of surveillance technology as defined in city law, which includes voice recognition, x-ray vans, “through the wall radar,” social media monitoring software, and more.
Ferguson on Wednesday said that the NOPD would like to make use of all the currently banned technologies. But of all of these tools, the one that has received the most attention is facial recognition.
As The Lens reported in 2021, the NOPD had previously used facial recognition despite repeated assurances to the public that it was not. The NOPD and city repeatedly dismissed questions about facial recognition by pointing out that the city’s surveillance hub — the Real Time Crime Center, or RTCC — has an internal policy that says it doesn’t utilize facial recognition.
However, that didn’t prevent the NOPD from taking images from RTCC footage and then sending it elsewhere for facial recognition analysis. The NOPD would send these requests to a state agency called the Louisiana State Analytic and Fusion Exchange, or Fusion Center.
Shortly after The Lens first reported on the NOPD’s use of facial recognition, the council passed a landmark surveillance ordinance in December 2020. Eye on Surveillance, which helped author the 2020 ordinance, argued that facial recognition technology is often biased, misidentifying women and people with darker skin at a far higher rate, putting them at risk for false suspicion from law enforcement.
The group has also broadly argued that while many police surveillance technologies have been shown to be biased, they have not been proven to be effective at reducing violent crime.
The group worked with then-Councilman Jason Williams to draft the 2020 surveillance ordinance. As originally written, the ordinance would have created broad, ongoing oversight for surveillance use, including annual reporting and council approval of new surveillance technologies. But Williams, who is now the city’s District Attorney, removed those provisions from the ordinance at the request of the NOPD.
Instead, the main effect of the 2020 ordinance was banning city agencies from using the four banned surveillance technologies in practically any situation — facial recognition, characteristic tracking, predictive policing and cell-site simulators.
It prohibited the city from owning those technologies, but it also banned the city from accessing the technology through outside agencies or third-party companies.
The new ordinance from Cantrell would carve out big exceptions for all four technologies, and explicitly allow the city to use new forms of surveillance that weren’t previously addressed in city law.
The ordinance would allow the city to use facial recognition in any investigation into violent crimes, sex crimes or crimes against a juvenile.
And it would allow the city to use any surveillance technology whatsover “to locate a named suspect of a specific violent crime, sex crime, or crime against a juvenile, for which an arrest warrant has been issued.”
That would apply to the four previously banned technologies, but also to a whole host of other surveillance technologies that haven’t previously been explicitly banned or approved. 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 also 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, such as the Fusion Center.
Council members on Wednesday seemed amenable to the NOPD’s request to loosen the surveillance restrictions to allow them to use some technologies for certain serious crimes. But they criticized the ordinance from the Cantrell administration for being far too broad and being written without consulting local privacy groups like Eye on Surveillance.
The biggest problem cited by council members on Wednesday was that the proposed ordinance would give broad surveillance authority to the city as a whole, rather than just the NOPD. As written, the ordinance allows the use of these tools by “the City or any City official.”
The Cantrell administration submitted an amendment that may have slightly narrowed that authority by replacing “any City official” with “any investigative body” and “any City criminal investigative department.”
Council members said they were confused with the new language, and that it still wasn’t narrow enough. And besides, they said, the ordinance still gives permission to “the City” as a whole, meaning the amendments may not have narrowed the authority whatsoever.
“The surveillance ordinance has been sold to the public as a law enforcement and public safety tool, unfortunately, the ordinance from the Mayor’s office focuses more on City agencies using this technology against city employees for investigations,” Moreno said in a statement Wednesday. “If this type of surveillance should be used for any investigation, it should only be in a very limited fashion by law enforcement for criminal investigations.”
As The Lens reported earlier this year, civilian city departments have recently used the city’s sprawling surveillance system to dispute a workers compensation claim and justify firing city employees.
Council members were more optimistic about the lengthy policy that the NOPD has created to govern its use of facial recognition. According to a letter provided by Councilman Green, the court-appointed monitors overseeing the department’s decade-long federal consent decree reforms reviewed the policy and had no objection to it.
But council members argued that the more narrow uses defined by the NOPD policy simply aren’t reflected in the actual ordinance granting the legal authority.
“The ordinance is infinitely more permissible than the policy,” Morrell said during Wednesday’s meeting meeting. “The policy at least is a good leaping-off point.”
Ferguson agreed with Councilwoman Moreno the ordinance was “vague.”
The ordinance’s broad authorization is significant given another controversial law change that Ferguson and the Cantrell administration pushed for — allowing the city to deputize civilian city employees to enforce certain quality of life crimes. That ordinance was approved by the council in December. And while the NOPD has produced a lengthy policy to accompany its use of facial recognition, that policy won’t apply to other departments.
Council members also pointed out that department policies can be changed much more easily than city laws.
At the end of the meeting, Green acknowledged certain issues in the legislation based on the criticisms laid out by fellow council members and privacy advocates with local anti-surveillance group Eye on Surveillance.
“There are potential flaws in the actual writing of the legislation,” he said.
He said he wanted to offer a motion to withdraw the ordinance, with the intention of bringing the ordinance back with new amendments for a full City Council vote during the council’s June 25 meeting.
However, Green isn’t a member of the Criminal Justice Committee, meaning he needed committee Chairman Oliver Thomas to introduce the motion to withdraw on his behalf. But none of the other three members of the committee — Moreno, Morrell, or Harris — would second that motion.
Instead, Morrell introduced a motion to “involuntarily defer” the ordinance. He said the intention was to force the ordinance to stay in committee, rather than allowing Green to simply forward it to the full council. All four members present on Wednesday — Morrell, Moreno, Harris and Thomas — voted in favor of the deferral.
However, shortly after the meeting, Morrell realized that the council’s rules don’t allow the maneuver he attempted. In a Twitter thread, he said that there is nothing the committee can do to stop the ordinance from being considered at the full council.
In the state legislature, where Morrell served prior to joining the council, committee votes are part of the formal lawmaking process. City Council committee votes, on the other hand, are merely recommendations. City Council rules provide for deferral motions — which require four council votes to pass — but it appears the rule only applies to consideration of an ordinance at a full council meeting.
Morrell said there simply isn’t a way for a council committee to prevent an ordinance from going to a full council vote.
It’s unclear exactly how the council will officially record the vote, but Morrell said that the vote should be practically interpreted as a vote against the ordinance.
“I speak for the majority of the committee in that we did not support this expansive, inclusive, surveillance bill,” Morrell said on Twitter.