Today, the City of Baltimore's ordinance banning private and public sector use of facial recognition technology goes into effect. Baltimore now becomes the third city, joining Portland, Ore., and New York City, to regulate private sector use of facial recognition technology (several other cities restrict public sector use only). We discussed the Portland and New York City laws in prior posts.

New York City permits the use of biometric identifying technologies with posted notice to customers, but Baltimore follows Portland in banning most public and private sector uses of facial recognition technology. Baltimore goes a step further by imposing criminal penalties for private sector actors who violate the ordinance. Violations are a misdemeanor punishable by a fine of up to $1,000 and up to 12 months in prison.

The new ordinance, Council Bill 21-0001, prohibits a person from obtaining, retaining, accessing, or using in Baltimore City (1) any face surveillance system, or (2) any information obtained from a face surveillance system. "Person" is defined broadly to include individuals, legal entities, and the Baltimore City government, among others (although public sector entities are excluded from the penalties provision).

A "face surveillance system" means any computer software or application that performs "face surveillance," defined as an automated or semi-automated process that assists in identifying or verifying an individual based on the physical characteristics of an individual's face. Excluded from the definition of a "face surveillance system" is any "biometric security system designed specifically to protect against unauthorized access to a particular location or an electronic device." The ordinance also does not apply to use of the Maryland Image Repository System, which the Baltimore Police Department and other law enforcement agencies use for criminal investigations.

Some of the ordinance's supporters have raised concerns with law enforcement's uses of facial recognition technology, particularly when it targets people of color.1 However, at least for now, the ordinance will not apply to the Baltimore Police Department, which has been a state agency for more than 150 years. But that could change as a result of S.B. 786, enacted by the Maryland legislature in May 2021, which would allow for authority over the police department to be transferred from the state to the City of Baltimore pending the passage and ratification of an amendment to the city charter. Baltimore City voters may ratify an amendment transferring authority in either 2022 or 2024.