The City of San Francisco (City) recently joined the ranks of cities and states weighing in on the use of facial recognition technology (FRT). The Stop Secret Surveillance Ordinance (Ordinance), which will likely take effect in June, is a nationwide first: a ban on the use of FRT by local police and other City agencies.

The Ordinance, which is now sitting on the City mayor's desk for signing, primarily makes it unlawful for any Department to "obtain, retain, access, or use: (1) any Face Recognition Technology; or (2) any information obtained from Face Recognition Technology." Notably, however, the Ordinance will not apply to private sector use of FRT, and in fact, contemplates private use of such technology by exempting City departments from enforcement for inadvertent or unintentional receipt, retention, or use of any information obtained from FRT.

The ban on FRT is one part of the City's surveillance oversight ordinance, which sets requirements for use and acquisition of surveillance technology more broadly. The Ordinance requires an audit of existing surveillance technologies in use by the City—such as automatic license plate readers and gunshot-detection systems—and requires City departments to submit a surveillance technology policy, approved by the Board of Supervisors, before purchasing additional surveillance technology. Officials will also be required to submit an annual report that explains the City's use of surveillance technologies, data sharing practices, and community complaints.

San Francisco's decision has attracted attention all across the country. Oakland, California is considering a similar ban for the city's agencies, as well as Somerville, Massachusetts. Other cities have passed legislation that empower residents, through local officials, to regulate the use of surveillance technology. And similar legislation is actively under consideration in many more cities.

Beyond the state and local level, the House Committee on Oversight and Reform (Committee) recently held the first in a series of hearings on FRT. The hearing focused on whether there should be a moratorium on government use of FRT or whether FRT should be banned outright. Bipartisan support from legislators was grounded in the largely unregulated technology's potential impact on the civil rights and liberties of individuals when used by law enforcement agencies.

Witnesses—consisting of civil liberties and privacy advocates, researchers, and legal scholars—and legislators expressed mutual concern over the expanding use of FRT, which gives law enforcement agencies unprecedented power to track in real-time. Witnesses warned of threats from expanding uses of FRT—including widespread mass surveillance and abuse by law enforcement—raising potential questions of constitutionality under the First, Fourth, and Fifth Amendment, as well as the Fourteenth Amendment Equal Protection and Due Process Clauses. In providing recommendations to the Committee for baseline protections, witnesses unanimously agreed on a ban on mass face surveillance. Most witnesses also agreed on a moratorium on governmental use of FRT until Congress can pass legislation that adequately restricts and regulates the technology and establishes data protections and oversight.

This hearing follows two recently introduced bills in Congress that would regulate FRT. The Commercial Facial Recognition Privacy Act would prohibit companies from collecting and disclosing an individual's biometric data without obtaining prior explicit consent. The Algorithmic Accountability Act would require companies to audit and correct machine learning systems that result in inaccurate, unfair, biased or discriminatory decisions.

For companies marketing FRT and other advanced surveillance technologies, these recent legal developments do pose challenges. A patchwork of local regulation is likely to continue outpacing federal regulation, at least in the short term. At the same time, it also appears that the current bans contemplated by various cities do not prohibit advanced surveillance generally, and so other related and ancillary technologies remain unscathed. These bans are additionally targeted to government agencies, which would likely hinder government contracts for FRT, but leave available market opportunities for private sector customers. Companies in this space should monitor closely the various legislative efforts to keep apprised of the potential risks and challenges that are affecting the implementation of facial recognition and surveillance technologies.