The bill would be the first successful attempt to regulate the use of facial recognition technology for law enforcement at a statewide level in Maryland.
Public defenders and prosecutors alike told lawmakers they believe some restrictions should be enacted, though they disagree how far those restrictions should go.
“This is a very complicated topic,” said Del. David Moon, a Montgomery County Democrat who sponsored the House version of the bill. He suggested during a House Judiciary Committee hearing that it was better for everyone to get together on some rules, “rather than have nothing whatsoever.”
The hearing also included bills related to police use of body cameras, aerial surveillance, decriminalizing drug paraphernalia and penalties for cannabis-related crimes.
Moon said the lack of rules around facial recognition has created “a bit of the Wild, Wild West,” allowing police across the state to use the technology with various levels of training and for different types of investigations.
His bill would limit police use of facial recognition to investigations of certain violent crimes, human trafficking offenses or ongoing threats to public safety or national security. It also would require images being evaluated using facial recognition and used in criminal investigations to be compared only to mug shots or images such as driver’s licenses or identification cards maintained by the Motor Vehicle Administration.
Baltimore County State’s Attorney Scott Shellenberger, one of three law enforcement officials who testified against parts of the bill, referred to the investigation into the Jan. 6, 2021, attack on the U.S. Capitol to say social media images also should be permitted in making comparisons.
“It’s my understanding that law enforcement, the FBI, used facial recognition through social media, and that’s how they got a number of the individuals caught,” Shellenberger said of the insurrection.
The Democratic prosecutor said he would support the bill with a few tweaks.
Russ Hamill, president of the Maryland Chiefs of Police Association, also mentioned websites that track sex offenders, missing children databases and even wanted posters put up by members of the community as other resources needed for facial recognition.
Those testifying in support of the limits currently in the bill included representatives from the Maryland Office of the Public Defender, the Innocence Project and a woman who said her husband was wrongfully charged and detained in part because he was incorrectly identified because of facial recognition.
Deborah Katz Levi, a lawyer with the Maryland Office of the Public Defender, said the lack of training and uniformity presents challenges for defense attorneys.
“Law enforcement is excited about this new technology and they really want to use it, but you can see that the unfettered discretion to use it is producing insanely unfair results across the state,” Levi said.
The legislation does not address other uses of facial recognition technology by government or private entities.
As lawmakers face a mid-April deadline to pass the bill and hundreds of other potential pieces of legislation, the committee meeting spilled into a seventh hour as members debated other changes that would affect policing and the criminal code.
Another bill from Moon would decriminalize and alter the penalties for possession of drug paraphernalia — mainly syringes and measuring spoons. The maximum penalty for a first-time paraphernalia possession offense would be lowered from a $25,000 fine and four years imprisonment to a $1,000 fine and one year. Subsequent offenses would also max out at one year in jail and $1,000.
Moon said it may sound like he’s “just going easy on people who use intravenous drugs.”
“No, that’s not the point of this at all,” Moon said. “It is that this should be a public health-driven mission.”
A similar bill was passed in 2021, but was vetoed by former Republican Gov. Larry Hogan. He described it as “an ill-advised policy change that does nothing to remove drug dealers from our streets or reduce opioid-related fatalities” in his veto letter, insisting that it would encourage “the use and possession of paraphernalia associated with drug use.”
The committee also considered Tuesday, without discussion, a bipartisan bill to help local law enforcement agencies afford body cameras and the storage of thousands of hours of footage.
Representatives from the Maryland Chiefs of Police Association, Maryland Municipal League and the Maryland Association of Counties all expressed support for the proposal from Del. Jazz Lewis, a Prince George’s County Democrat. His bill is also sponsored by Senate Minority Whip Justin Ready, a Carroll County Republican, in the opposite chamber.
Another bill heard Tuesday would ban government entities and police from conducting “persistent aerial surveillance” — defined as the use of aircraft to record video or take pictures that “depict a person’s actions over time.”
Lawmakers discussed the proposal, from Baltimore County Republican Del. Robin Grammer, just days after the federal government shot down a suspected Chinese spy balloon that had crossed the United States.
Closer to home, it follows a controversy in recent years involving the Baltimore Police Department’s use of private surveillance planes.
The surveillance program, which police said was aimed at reducing violent crime, was canceled in 2021 amid a federal lawsuit brought by the American Civil Liberties Union arguing it was an invasion of privacy and unfairly targeted minority neighborhoods. Federal judges later ruled against the city in the case, saying police use of the surveillance power, if left unchecked, could violate protections under the Fourth Amendment.
Grammar said technologies were “abused” in the Baltimore incident. His bill would ban the surveillance except under certain circumstances, such as when a judge issues a search warrant, when police are in “fresh pursuit of a suspect” or during search and rescue operations.
Shellenberger, opposing the bill, told the committee he believed the ban would take away a “very effective law enforcement tool.”
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