Mere hours after supporters of former admiral Donald Trump forced their way into the Capitol Building on Jan. 6, sleuths, both abecedarian and professional, took up the task of combing through the abundant videos and photos on social media to analyze rioters. Facial acceptance technology — long reviled by police reform advocates as inaccurate and racially biased — was aback everywhere.

A academy apprentice in Washington, D.C., used facial recognition to abstract faces from videos on social media. The Washington Post used facial acceptance to count the number of alone faces at the Capitol Building attack, and a researcher from Citizen Lab used it to analyze people complex in the riots. And when the FBI posted photos of rioters, attractive for help with identification, the Miami Police Department assigned two detectives to scan faces into the department’s Clearview facial acceptance app.

The adventure was a admonition that facial acceptance software is now all-over in the clandestine and public sectors—a fact that often gets disregarded as cities pass high-profile laws that acceptation to ban law administration from using the technology. The Markup advised 17 bans passed in the past couple of years, speaking with local admiral and account through official documents. In six of those cities, admiral either told The Markup or contrarily about stated that loopholes in the bans finer allow police to access advice garnered through facial recognition.

The bans in Pittsburgh; Boston; Alameda, Calif.; Madison, Wis.; Northampton, Mass.; and Easthampton, Mass., all have accent in their regulations that may allow local police to abide using facial acceptance through state and federal agencies or the clandestine sector.

Some say such loopholes are a good thing: Following the riots in D.C., Massachusetts governor Charlie Baker said befitting facial acceptance technology as a tool is all-important absolutely because of situations like the Jan. 6 riot. Late last year, Baker pushed for exceptions to a statewide brake on facial acceptance before accordant to sign the bill.

Others, however, said laws need to go added and absolutely anticipate police from artifice bans.

“The realist in me has no doubt that police departments will try to wedge in any kind of loopholes around the use of this technology or any other sort of tool that they have at their disposal. This is not a surveillance problem; this is a policing problem,” Mohammad Tajsar, a senior staff advocate for the American Civil Liberties Union of Southern California, said. “If you create a carve-out for the cops, they will take it.”

Different cities, altered loopholes

When Pittsburgh passed its ban at a City Council affair in September, Council Member Ricky Burgess voted for it, though under protest.

“There’s a part of the legislation that says it doesn’t apply to us using software produced or shared by other police departments,” he said at the meeting. “This does not stop facial recognition.”

The authorization has a area that notes that the law “shall not affect activities accompanying to databases, programs, and technology regulated, operated, maintained, and appear by addition government entity.”

Boston, Madison, Wis., and Alameda, Calif., have agnate language.

The Alameda Police Administration didn’t acknowledge to The Markup’s questions on that city’s ban, but when the ban passed, an abettor city manager testified that the “software could be leveraged as a ability in the book of a crime spree involving the Federal Bureau of Investigations [sic],” which uses facial recognition, but “the technology is not article the City of Alameda would be paying for or anon seeking.”

Tyler Grigg, a public advice administrator for the Madison Police Department, told The Markup that admiral can use facial acceptance provided by businesses even though it’s banned from government use.

In Easthampton, Mass., the ban still allows police to use facial acceptance as affirmation if it comes from addition law administration agency, but not businesses, Dennis Scribner, a public advice administrator for the Easthampton Police Department, said.

Northampton, Mass., police chief Jody Kasper told The Markup that the administration could use advice from facial acceptance provided by both alfresco agencies and businesses.

Tali Robbins, policy administrator for Boston city agent Michelle Wu, who authored that city’s ban, accepted that Boston police may have access to facial acceptance technology through other agencies.

Kade Crockford, administrator of the Technology for Liberty affairs at the ACLU of Massachusetts, said it can be difficult for police to finer track where their tips are coming from and ensure that facial acceptance wasn’t used.

“We want the ordinances to absolutely have an impact,” Crockford said. “If they’re too narrow in the sense that they bind law administration conduct like the use of advice that comes from an alfresco agency, we worry there’s a glace slope that they’ll just ignore it.”

Ultimately, Crockford said, a federal brake or ban on the technology would best anticipate facial acceptance from being used at all.

However, some argue police are misinterpreting the local bans already in place. Chad Marlow, a senior advancement and policy admonition at the ACLU, told The Markup that Northampton police should not be able to access the technology, through any means, under that city’s ban.

“They are not accustomed to spend any resources, including cadre time, on facial recognition. That’s what the law says. There are no carve-outs in the law,” Marlow said about Northampton’s police chief’s interpretation.

It’s not always easy to track how facial acceptance gets used

In many known cases of police using facial recognition, the doubtable wasn’t aware police used the technology until much later.

An NBC Miami analysis found that Miami police arrested protesters using facial recognition. The arrest letters noted only that police had articular suspects using “investigative means,” and even aegis attorneys said they were not aware facial acceptance was used until approached by NBC.

Jacksonville police arrested a man for affairs $50 of cocaine and identified him by using facial recognition but didn’t acknowledge the technology’s use in the police report.

“Even when facial acceptance is being used in investigations, it’s about hidden,” Jake Laperruque, a senior admonition at the Constitution Project, said.

Police, for instance, can get tips based on a clandestine business’s use of facial acceptance software. Companies like Rite Aid, Home Depot, and Walmart have implemented or tested the technology in their stores.


Cities banned facial acceptance for police use because of its known bias adjoin people of color and women, and it’s no altered when businesses are using the technology, Laperruque said.

“This stuff can be wrong a lot, and it’s abnormally wrong for people of color,” he said. “If this is article that’s going to lead to a store calling the police on a person, that to me creates a lot of the same risks if you worry about facial acceptance misidentifying addition by the police.”

A New York teen afresh filed a multimillion-dollar lawsuit against Apple in the Southern District Court of New York, alleging he was misidentified as a abiding bandit when Apple’s aegis firm linked his name to surveillance footage of a altered person. The actual shoplifter, according to the complaint, had stolen the teen’s driver’s permit and presented it to aegis when he was caught annexation at assorted Apple stores.

When New York police admiral arrested Ousmane Bah, the accusation says, they bound accomplished they had the wrong person, cogent Bah he was likely “incorrectly articular based on a facial acceptance system activated by Apple or [Security Industry Specialists].”

Apple, which beneath to animadversion on the accusation to The Markup, has denied it uses facial acceptance software in its stores.

Information also flows freely among law administration agencies that may be operating under altered regulations. In San Francisco, the first city to ban the technology, altercation ensued when facial recognition showed up in a bent case last September.

San Francisco police had sent out a account appeal attractive for help anecdotic a gun acquittal doubtable in a photo. Addition law administration agency—The Northern California Regional Intelligence Center (NCRIC)—responded with an ID they acquired from using PhotoMatch facial identification software.

NCRIC, a affiliation of federal, state, and local departments, does not fall under the administration of San Francisco’s facial acceptance ban, controlling administrator Mike Sena told The Markup, and runs facial acceptance searches anytime it gets an identification request.

“Our job is to help locate bad guys, no matter what city they’re in,” Sena said. “The worst thing I can do is hold onto a abeyant match.”

Public admiral in San Francisco, however, raised a fuss when they became aware of the case, insisting that the city’s ban precluded the administration from using NCRIC’s identification. (The SFPD claims several admiral accustomed the doubtable on their own before accepting the facial acceptance match.)

The case is advancing and appointed for trial in March.

SFPD public advice administrator Michael Andraychak told The Markup that going forward, the administration “would not be able to use any identification acquired via facial  acceptance software.”

The portland model

Last September, Portland, Ore., passed the most absolute facial acceptance ban to date, prohibiting not only law administration use but also use in places of public adaptation (e.g., restaurants and other places open to the accepted public).

“Once we started doing our due activity to advance our own policy, we started accepting a lot of association acknowledgment and acquainted the role that clandestine businesses are having in abutting people’s information,” said Hector Dominguez, the Open Data Coordinator with Portland’s Smart City PDX.

But there was pushback from industry groups, absolute just how boundless the technology has become. Tech giant Amazon lobbied the city for the first time ever because of the measure, spending $12,000. The Portland Business Alliance asked for carve-outs to the law for airlines, banks, hotels, retailers, concert venues, and action parks, while the Oregon Bankers Association asked for exceptions to allow the use of facial acceptance to accommodate police affirmation in robberies.

The Portland ban does allow one exception: Businesses and agencies operating within the city may use facial acceptance if they say they must do so to comply with federal, state, or local laws (such as Customs and Border Protection, operating at the airport). But businesses, ultimately, were included in the ban—a move ban advocates say was necessary.

“Industry often has more of an onus to surveil than police do in accustomed circumstances,” Lia Holland, an organizer in Portland with Fight for the Future, said. “The dispensation to save that data forever, to match those faces to customer’s faces, is article that police departments might not have the accommodation to do in the same way that a aggregation does.”

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