On Thursday, the New Orleans City Council passed an ordinance intended to place “guardrails” on police use of facial recognition software — which was approved by the council two weeks ago, reversing a 2020 outright ban on the technology.
But one of the primary components of the measure — that police get approval of a judge or a magistrate commissioner prior to requesting the use of facial recognition — was removed prior to passage due to objections from criminal district court judges, who said they needed a better understanding of the technology before they could become involved in its approval.
Instead, the ordinance now urges the court to “accept a role in receiving information from NOPD on a case-by-case basis on its use of facial recognition technology” and to join a working group with the council and the NOPD.
In was passed unanimously in a 6-0 vote. (Councilman Oliver Thomas was absent for the meeting.)
The council also passed an ordinance brought by Councilman JP Morrell that requires criminal justice agencies to submit raw data to the New Orleans City Council on a monthly basis, and specifically requests from NOPD information related to homicides, non-fatal shooting, staffing, and requests for video footage from two surveillance hubs managed by outside agencies.
Mayor LaToya Cantrell’s administration raised concerns about the ordinance, arguing among other things, that it would be a burden to already understaffed agencies. But at the meeting on Thursday, Morrell dismissed those concerns as unfounded.
“Other than staying it’s overly burdensome, they don’t produce any actual evidence that it would be overly burdensome,” Morrell said.
That ordinance was also passed unanimously by the six members of the Council who were present.
The facial recognition guardrails ordinance was brought by Coucilmembers Morrell, Helena Moreno, and Leslie Harris. Both Morrell and Harris voted against approving the technology last month. Moreno was absent for the vote.
In addition to creating a working group with the council, NOPD, and the court, the measure also clarifies that the technology cannot be used to investigate aboritions or any consenual sex acts between adults “including without limitation any law purporting to criminalize sexual contact between same-sex partners.” Performing abortions is now a crime under Louisiana’s “trigger law,” which recently went into effect again this week after a back and forth legal battle following the U.S. Supreme Court’s decision overturning Roe v. Wade.
And councilmembers suggested that a rollback of protections for same-sex relationships could be next.
“We see the state’s legislature trying to erode those rights,” said Councilwoman Leslie Harris at the meeting.
According to the department, NOPD does not have its own access to facial recognition technology. Rather, they place requests with the Louisiana Fusion Center, a multi-agency law enforcement data sharing operation housed in the Louisiana State Police headquarters. And the ordinance will require NOPD to provide quarterly reports regarding how frequently they put in those requests, along with information about the suspect and whether or not an arrest was made, to the chair of the City Council’s Criminal Justice Committee.
The council banned the use of facial recognition technology in 2020 as part of a broader ordinance aimed at regulating surveillance technology in the city, which also banned characteristic tracking software, cell-site simulators, and predictive policing. Civil rights advocates have expressed concerns that facial recognition technology in paticular has been shown to have racial bias, and can be easily misused by police departments.
But after a push from Mayor LaToya Cantrell’s administration and NOPD leadership amid a recent spike in homicides and other violent crimes, the council voted 5-2 last month to permit NOPD to access facial recognition technology in order to investigate certain crimes.
Chris Kaiser, advocacy director for the ACLU of Louisiana, called the ordinance passed on Thursday a “necessary first step” at regulating facial recognition.
“What we’re talking about today is whether you want to put some basic checks and balances on police use of controversial and demonstrably biased technology,” he said.
Concerns from judges
As it was initially proposed, the “guardrails” ordinance would have required police officers to get a sign-off from a judge or magistrate commissioner in order to request the use facial recognition technology, and also sign an affidavit saying that they followed NOPD policy and exhausted all other means of identifying someone prior to making their request.
But Moreno said on Thursday that she received pushback from judges at Orleans Parish Criminal District Court who said they didn’t feel they
“We received a lot of pushback from the judges, due to the fact that they feel that they are not very well aware of the utilization of facial recognition technology by NOPD, or actually how that process will work,” Moreno said.
In an email obtained by The Lens, judicial administrator of the Criminal District Court Rob Kazik outlined his concerns to council members on Wednesday evening prior to the vote, noting that the judges had not been given a presentation on “how the technology works and the parameters as to how the technology would be used.”
Kazik said that once the judges gain a “thorough understanding” of the technology and policies surrounding it, then they could then “evaluate the judiciary’s role” in potentially helping to regulate police use of facial recognition.
“As you can understand, this process will take some time,” Kazik wrote.
He did not respond to requests for additional comments from The Lens.
One public commenter at the meeting questioned whether or not the technology should be used by police if judges didn’t feel comfortable being in charge of approving it.
“If they don’t understand the technology then why did we even pass this in the first place?” asked Jenny Fischman.
The other, data-related ordinance would require criminal justice agencies — including the DA, the Sheriff, Criminal District Court, and Juvenile Court – to submit raw data “as requested” to the council on a monthly basis.
Morrell said that his ordinance was an effort to regulate the production of data that he said is sometimes provided to the council, but not in any reliable way.
“We’ve historically had access to data on and off seemingly at the whims of whoever was in charge of that data,” Morrell said, and noted that emergencies — such as the 2019 cyber attack — would sometimes disrupt data production for longer than necessary.
“After the emergency ceased, agencies were reticent to get back into a data sharing position,” Morrell said.
For NOPD, the ordinance specifies that the data should include figures on homicides and non-fatal shootings (including the identity of the victim and their race and gender, weapon used, and motive), staffing, and overtime.
It also asks for data on NOPD requests video from two surveillance hubs: the Real Time Crime Center, which is under the purview of the New Orleans Office of Homeland Security and Emergency Preparedness, and the Louisiana Fusion Center, a multi-agency law enforcement data sharing operation housed in the Louisiana State Police headquarters.
The ordinance also codifies that NOPD will continue to make available to the public monthly datasets related to use of force, misconduct, stop and search, and calls for service, which they currently publish on their website.