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New Orleans PD Using Facial Recognition Despite Earlier Denials

Despite earlier claims by officials that the New Orleans Police Department was not using facial recognition, it appears the agency has been leveraging the technology through state and federal partners.

by Michael Isaac Stein, The Times-Picayune & The New Orleans Advocate / November 17, 2020
Shutterstock/varuna

(TNS) — The New Orleans Police Department has confirmed that it is using facial recognition software to investigate crime, despite years of assurances that city government wasn't employing the technology.

The agency doesn't own facial recognition software, spokesman Kenneth Jones said, but was granted access to the technology through "state and federal partners." He would not provide a list of those partners, saying, "We would prefer not to at this time." He indicated, however, that the FBI was on that list.

"As for particulars on facial recognition hardware and software, please contact the Federal Bureau of Investigations," Jones said. An FBI spokesperson would not comment on "specific products or services the FBI may or may not purchase or use."

Jones also indicated that the Louisiana State Police are on that list of partners. A State Police spokesman, Lt. Nick Manale, said that while the Louisiana State Analytical & Fusion Exchange does work with New Orleans police, he could not "provide specific information on our investigative tools and procedures."

New Orleans police use facial recognition only for "violent cases," Jones said, but added that "documentation of frequency of use of facial recognition is not currently available." Asked whether there was any written policy or procedure regarding the technology, Jones said Police Superintendent Shaun Ferguson "is currently working with Councilman [Jason] Williams on a policy as to when facial recognition tools should be used."

Jones would not say how long the Police Department has been using facial recognition.

For years, and under two separate mayoral administrations, city officials responded to questions about facial recognition by saying the local government didn't own any of the software, or by talking specifically about the Real Time Crime Center. The Real Time Crime Center, is the city's video surveillance hub and has a policy against the use of facial recognition.

But the center is part of the Department of Homeland Security and Emergency Preparedness, and its policies don't apply to the Police Department.

In July, the City Council held a hearing on a potential surveillance ordinance that, among other things, would ban the use of facial recognition.

"Of course the city doesn't deploy any facial recognition technology in a law enforcement purpose," Real Time Crime Center administrator Ross Bourgeois told the council. "The city doesn't have any of that technology available for our use."

Later in that meeting, Councilwoman Helena Moreno asked Jonathan Wisbey, chief technology officer in Mayor LaToya Cantrell's administration. about the difference between facial recognition and characteristic tracking software.

"Jonathan, we don't have either of these in the city, right?"

"We do not currently employ any technology that does that in 2020," Wisbey said.

"There certainly appears to be consensus around not utilizing the face surveillance systems or characteristic tracking software, that that's not something we're interested in," Moreno said.

In November, the ACLU of Louisiana asked City Hall for documents and communications "regarding the use of facial recognition." The government responded this week by saying, "The Police Department does not employ facial recognition software." No documents were handed over, and the public records request was closed.

ACLU attorney Bruce Hamilton said that whether the city's statements were technically true, the end result is that public officials, residents and watchdog groups were under the false impression that the municipal government was not working with facial recognition software.

"This is a distinction without a difference. The result is the same, that the city's law enforcement agency is using facial recognition  even if it is using other agencies to do it," Hamilton said. "This is a disturbing admission by NOPD, indicating that the department and other city officials have repeatedly misled the public and surreptitiously deployed facial recognition software without public approval or oversight."

The Police Department did not directly respond to questions about whether it would review its response to the ACLU's public records request.

"The term employ used in the [public records request] response might've referred to ownership of the tool itself, which we don't," Jones said. "I apologize for any misunderstanding. ... Again, the word 'employ' was used in the context of ownership. The consensus between the PRR and NOPD response is that the NOPD does not own facial recognition tools."

In a Thursday letter, the New Orleans Office of Independent Police Monitor told the Police Department it wanted to audit the department's use of facial recognition. It asked the department hand over a wide array of documents and records related to facial recognition.

Theo Thompson, a member of the local watchdog group Eye on Surveillance, said he hoped news that the Police Department was using facial reconition convinced hesitant City Council members of the need for comprehensive surveillance regulation.

"There have been many discussions around whether or not the city has been using facial recognition, and the answer we were given was always no," Thompson said. "There is a continued lack and flat out neglect of transparency."

'THIS TECHNOLOGY IS FLAWED'

The use of facial recognition came to light in part because of the council's recent work with Eye on Surveillance on a proposed ordinance to limit how the the administration may use surveillance technology. The proposed ordinance is sponsored by Councilman Jason Williams, who is heading to a Dec. 5 runoff election for Orleans Parish district attorney against former Judge Keva Landrum.

Williams has run as a criminal justice reformer, and the surveillance ordinance is one of several criminal justice reforms he's introduced this year, with limited success.

The councilman's chief of staff, Keith Lampkin, said he learned the Police Department was using facial recognition during a call with Ferguson, the police chief. Lampkin said he wanted to ensure the proposed ordinance wouldn't inadvertently and unnecessarily cause issues for the police. He wasn't expecting facial recognition to be a problem.

"We were working under the understanding and under the representation that we were not using facial recognition as a city, and therefore there would be no issue with an outright ban on facial recognition technology in our surveillance ordinance," Lampkin said. "That call was the first call when we heard directly from the superintendent, directly from the NOPD, that they were in fact using facial recognition technology."

That call occurred just hours before Hurricane Zeta made landfall on Louisiana's coast and knocked out power to much of New Orleans. Storm recovery quickly took priority, Lampkin said, but he added, "There's definitely a cleanup conversation to be had."

"That kind of 11th hour revelation, for lack of a better word, when we've been told the opposite, obviously impacted our process," Lampkin said. "But it's new information that we're going to engage with them over the next couple weeks to find out what the hell is going on and how far reaching it is."

The City Council was expected to vote on the surveillance measure last week, but it was deferred.

City Councilman Jay Banks was also surprised to hear about the Police Department's admission.

"I still have not been told we're using facial recognition, and I still have reservations about it," he said. "If it turns out that we are using it, I'm disappointed, No. 1, that we're using it, and No. 2, that we were told that we weren't."

At the June surveillance hearing, Banks said: "I am vehemently opposed to facial recognition technology for arresting folks because in too many instances it proves not to work."

Banks raised the case of Robert Julian-Borchak Williams, a Detroit man who was wrongly accused of theft and charged with retail fraud after facial recognition software incorrectly identified him from a crime scene surveillance photo. He was arrested in January on his front lawn in front of his wife and two children and was kept in custody for 30 hours.

The prosecutor ended up dismissing the charge and apologized. The prosecutor's office said the case should never have gone so far, citing the "unreliability" of facial recognition software, "especially as it relates to people of color."

Facial recognition has been criticized over privacy concerns and because there is evidence showing it often misidentifies Black people and people of color at a higher rate than White people. In 2019, the National Institute of Standards and Technology, a federal government agency, released a study concluding that most commercial facial recognition software was racially biased, misidentifying Black and Asian people at 10 to 100 times the rate of misidentification for White people. The study tested 189 pieces of software from 99 different developers. It found that misidentification problems were worst for Native Americans.

Ferguson on Friday said he understood concerns over bias in facial recognition technology. But he said he thinks it can be a valuable tool if used responsibly.

At the June council meeting, Banks said that even though Williams' case in Detroit was dismissed, there's no way of knowing the reverberating effects of being arrested in front of his family or spending more than a day in jail.

"The trauma of seeing her father arrested may never leave that child, and we have no way to know how it will continue to manifest itself in her," Banks said. "This month Amazon, Microsoft and IBM all announced or paused using their facial recognition offerings for law enforcement. There's a reason for that. They acknowledge this technology is flawed."

NO EXISTING POLICIES

In June, Wisbey, the administration's chief technology officer, told the City Cvouncil that instead of blanket bans on certain technologies, he recommended creating clear regulations with actionable consequences.

"I think that there is this potential for abuse when you use any type of technology really, not just these surveillance technologies," Wisbey said. "The way we have tried to mitigate those risks ... is to really look at the policies governing that. And to say rather than, 'This technology is bad or evil or not something we should ever use,' say 'You know what, this technology is potentially problematic so we need to be very prescriptive of how we use it. And we need to ensure there are real life consequences if someone violates those regulations.' "

But the Police Department confirmed it has no policy or written procedures for its use of facial recognition. Jones, the department spokesman, said Ferguson was working on creating that policy.

It's also unclear what kind of tracking and auditing the Police Department requires for its facial recognition use. Jones said that documentation "is not currently available."

Said Hamilton, the ACLU lawyer: "The fact that 'documentation of the frequency of use' of this technology by NOPD is 'currently unavailable' only underscores the fact that no city official — including NOPD officers — should be using any surveillance technology without oversight and transparency. The residents of this city deserve to know when surveillance is being used, by whom and for what purpose."

Jones said police don't use facial recognition to determine probable cause for an arrest. "It's important to note that the use [of] facial recognition software is for investigative purposes only, not to determine probable cause for a crime."

Hamilton wasn't comforted by that statement, saying it was "frankly absurd."

In the case of Williams' false arrest, the Detroit Police Department gave a similar defense, saying that it does "not make arrests based solely on facial recognition," according to The New York Times. The document that initially identified Williams to the police said in bold letters, "It is an investigative lead only and is not probable cause for arrest," The Times reported.

©2020 The Times-Picayune & The New Orleans Advocate, Distributed by Tribune Content Agency, LLC.

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