The Baltimore City Council recently passed an ordinance, in a vote of 13-2, barring the use of facial recognition technology by city residents, businesses, and most of the city government (excluding the city police department) until December 2022.  Council Bill 21-0001  prohibits persons from “obtaining, retaining, accessing, or using certain face surveillance technology or any information obtained from certain face surveillance technology.”

Facial recognition technology has become more popular in recent years, including during the COVID-19 pandemic. As the need arose to screen persons entering a facility for symptoms of the virus, including temperature, thermal cameras, kiosks, and other devices embedded with facial recognition capabilities were put into use, often inadvertently. However, many have objected to the use of this technology in its current form, citing problems with the accuracy of the technology, as summarized in a June 9, 2020 New York Times article, “A Case for Banning Facial Recognition.”

While many localities across the nation have barred the use of facial recognition systems by city police, and other government agencies, such as San Francisco and Oakland, Baltimore is only the second city (following Portland, Oregon), to ban biometric technology use by private residents and businesses. Effective January 1, 2021 the City of Portland banned the use of facial recognition by private entities in any “places of public accommodation” within the boundaries of the city. “Places of public accommodation was broadly defined to include any “place or service offering to the public accommodations, advantages, facilities, or privileges whether in the nature of goods, services, lodgings, amusements, transportation or otherwise.”

Specifically, the Baltimore ordinance prohibits an individual or entity from obtaining, retaining, or using facial surveillance system or any information obtained from a facial surveillance system within the boundaries of Baltimore city. “Facial surveillance system” is defined as any computer software or application that performs face surveillance. Notably, the Baltimore ordinance explicitly excluded from the definition of “facial surveillance system” a biometric security system designed specifically to protect against unauthorized access to a particular location or an electronic device, meaning employers using a biometric security system for employee/visitor access to their facilities would appear to be still be permissible under the bill. The ordinance also excludes from its definition of “facial surveillance system” the Maryland Image Repository System (MIRS) used by the Baltimore City Police in criminal investigations.

A person in violation of the law is subject to fine of not more than $1,000, imprisonment of not more than 12 months, or both fine and imprisonment.  Each day that a violation continues is considered a separate offense. The criminalization of use of facial recognition, is first of its kind across the United States.

The Baltimore bill also includes a separate section applicable only to the Mayor and City Council of Baltimore City, requiring an annual surveillance report by the Director of Baltimore City Information and Technology or any successor entity, in consultation with the Department of Finance to be submitted to the Mayor of Baltimore detailing: 1) each purchase of surveillance technology during the prior fiscal year, disaggregated by the purchasing agency, and 2) an explanation of the use of the surveillance technology.  In addition, the report must be posted to the Baltimore City Information and Technology website. Examples of surveillance technology that must be included in the report include: automatic license plate readers, x-ray vans, mobile DNA capture technology and software designed to forecast criminal activity or criminality.

It is important to note, that the bill’s provisions are set to automatically expire December 31, 2022 unless the City Council, after appropriate study, including public hearings and testimonial evidence concludes that such prohibitions and requirements are in the public interest, in which case the law will be extended for an additional 5 years.

The Baltimore ordinance has been met with significant opposition by industry experts, particularly as the ordinance would be the first in the U.S. to criminalize private use of biometric technologies. In a joint letter, the Security Industry Association (SIA), the Consumer Technology Associations (CTA) and the Information Technology and Innovation Foundation (ITIF) and XR Association to reject the enactment of the Baltimore ordinance on grounds that it is overly broad and prohibits commercial applications of facial recognition technology that already have widespread public acceptance and provide “beneficial and noncontroversial” services, including for example: increased and customized accessibility for disabled persons, healthcare facilities to verify patient identities while reducing the need for close-proximity interpersonal interactions, banks to enhance consumer security to verify purchases and ATM access, and many more. A similar concern was voiced by Councilmember Issac Schliefer who was one of the two votes opposing the ordinance.

The ordinance now awaits signage by Baltimore Mayor Brandon Scott, and if signed, will become effective 30 days after enactment. In anticipation, of the ordinance’s potential enactment, businesses in the City of Baltimore should begin evaluating whether they are using facial recognition technologies, whether they fall into one of the exceptions in the ordinance, and if not what alternatives they have for verification, security, and other purposes for which the technology was implemented.

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Photo of Jody Kahn Mason Jody Kahn Mason

Jody Kahn Mason is a Principal in the Chicago, Illinois, office of Jackson Lewis P.C. and is a contributor to the Disability, Leave & Health Management Blog. She is an experienced employment law litigator and defends employers before federal and state courts and…

Jody Kahn Mason is a Principal in the Chicago, Illinois, office of Jackson Lewis P.C. and is a contributor to the Disability, Leave & Health Management Blog. She is an experienced employment law litigator and defends employers before federal and state courts and administrative agencies throughout the Midwest.  She also regularly provides advice and counsel to clients regarding challenges relating to the implementation of the ADA, FMLA, and similar state and local laws.

Learn more about Ms. Mason on the Jackson Lewis website.

Photo of Jason C. Gavejian Jason C. Gavejian

Jason C. Gavejian is a Principal in the Morristown, New Jersey, office of Jackson Lewis P.C. and a Certified Information Privacy Professional (CIPP/US) with the International Association of Privacy Professionals.

As a Certified Information Privacy Professional (CIPP/US), Mr. Gavejian focuses on the matrix…

Jason C. Gavejian is a Principal in the Morristown, New Jersey, office of Jackson Lewis P.C. and a Certified Information Privacy Professional (CIPP/US) with the International Association of Privacy Professionals.

As a Certified Information Privacy Professional (CIPP/US), Mr. Gavejian focuses on the matrix of laws governing privacy, security, and management of data. Mr. Gavejian is Co-Editor of, and a regular contributor to, the firm’s Workplace Privacy, Data Management & Security Report blog.

Mr. Gavejian’s work in the area of privacy and data security includes counseling international, national, and regional companies on the vast array of privacy and security mandates, preventive measures, policies, procedures, and best practices. This includes, but is not limited to, the privacy and security requirements under state, federal, and international law (e.g., HIPAA/HITECH, GDPR, California Consumer Privacy Act (CCPA), FTC Act, ECPA, SCA, GLBA etc.). Mr. Gavejian helps companies in all industries to assess information risk and security as part of the development and implementation of comprehensive data security safeguards including written information security programs (WISP). Additionally, Mr. Gavejian assists companies in analyzing issues related to: electronic communications, social media, electronic signatures (ESIGN/UETA), monitoring and recording (GPS, video, audio, etc.), biometrics, and bring your own device (BYOD) and company owned personally enabled device (COPE) programs, including policies and procedures to address same. He regularly advises clients on compliance issues under the Telephone Consumer Protection Act (TCPA) and has represented clients in suits, including class actions, brought in various jurisdictions throughout the country under the TCPA.

Mr. Gavejian represents companies with respect to inquiries from the HHS/OCR, state attorneys general, and other agencies alleging wrongful disclosure of personal/protected information. Mr. Gavejian negotiates vendor agreements and other data privacy and security agreements, including business associate agreements. His work in the area of privacy and data security includes counseling and coaching clients through the process of investigating and responding to breaches of the personally identifiable information (PII) or protected health information (PHI) they maintain about consumers, customers, employees, patients, and others, while also assisting clients in implementing policies, practices, and procedures to prevent future data incidents.

Mr. Gavejian represents management exclusively in all aspects of employment litigation, including restrictive covenants, class-actions, harassment, retaliation, discrimination, and wage and hour claims in both federal and state courts. Mr. Gavejian regularly appears before administrative agencies, including the Equal Employment Opportunity Commission (EEOC), the Office for Civil Rights (OCR), the New Jersey Division of Civil Rights, and the New Jersey Department of Labor. Mr. Gavejian’s practice also focuses on advising/counseling employers regarding daily workplace issues.

Mr. Gavejian’s litigation experience, coupled with his privacy practice, provides him with a unique view of many workplace issues and the impact privacy, data security, and social media may play in actual or threatened lawsuits.

Mr. Gavejian regularly provides training to both executives and employees and regularly speaks on current privacy, data security, monitoring, recording, BYOD/COPE, biometrics (BIPA), social media, TCPA, and information management issues. His views on these topics have been discussed in multiple publications, including the Washington Post, Chicago Tribune, San Francisco Chronicle (SFGATE), National Law Review, Bloomberg BNA, Inc.com, @Law Magazine, Risk and Insurance Magazine, LXBN TV, Business Insurance Magazine, and HR.BLR.com.

Mr. Gavejian is the Co-Chair of Jackson Lewis’ Hispanic Attorney Resource Group, a group committed to increasing the firm’s visibility among Hispanic-American and other minority attorneys, as well as mentoring the firm’s attorneys to assist in their training and development. Mr. Gavejian also previously served on the National Leadership Committee of the Hispanic National Bar Association (HNBA) and regularly volunteers his time for pro bono matters.

Prior to joining Jackson Lewis, Mr. Gavejian served as a judicial law clerk for the Honorable Richard J. Donohue on the Superior Court of New Jersey, Bergen County.

Photo of Joseph J. Lazzarotti Joseph J. Lazzarotti

Joseph J. Lazzarotti is a Principal in the Morristown, New Jersey, office of Jackson Lewis P.C. He founded and currently leads the firm’s Privacy, e-Communication and Data Security Practice, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with…

Joseph J. Lazzarotti is a Principal in the Morristown, New Jersey, office of Jackson Lewis P.C. He founded and currently leads the firm’s Privacy, e-Communication and Data Security Practice, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the International Association of Privacy Professionals. Trained as an employee benefits lawyer, focused on compliance, Mr. Lazzarotti also is a member of the firm’s Employee Benefits Practice Group.

In short, his practice focuses on the matrix of laws governing the privacy, security, and management of data, as well as the impact and regulation of social media. He also counsels companies on compliance, fiduciary, taxation, and administrative matters with respect to employee benefit plans.

Privacy and cybersecurity experience – Mr. Lazzarotti counsels multinational, national and regional companies in all industries on the broad array of laws, regulations, best practices, and preventive safeguards. The following are examples of areas of focus in his practice:

  • Advising health care providers, business associates, and group health plan sponsors concerning HIPAA/HITECH compliance, including risk assessments, policies and procedures, incident response plan development, vendor assessment and management programs, and training.
  • Coached hundreds of companies through the investigation, remediation, notification, and overall response to data breaches of all kinds – PHI, PII, payment card, etc.
  • Helping organizations address questions about the application, implementation, and overall compliance with European Union’s General Data Protection Regulation (GDPR) and, in particular, its implications in the U.S., together with preparing for the California Consumer Privacy Act.
  • Working with organizations to develop and implement video, audio, and data-driven monitoring and surveillance programs. For instance, in the transportation and related industries, Joe has worked with numerous clients on fleet management programs involving the use of telematics, dash-cams, event data recorders (EDR), and related technologies. He also has advised many clients in the use of biometrics including with regard to consent, data security, and retention issues under BIPA and other laws.
  • Assisting clients with growing state data security mandates to safeguard personal information, including steering clients through detailed risk assessments and converting those assessments into practical “best practice” risk management solutions, including written information security programs (WISPs). Related work includes compliance advice concerning FTC Act, Regulation S-P, GLBA, and New York Reg. 500.
  • Advising clients about best practices for electronic communications, including in social media, as well as when communicating under a “bring your own device” (BYOD) or “company owned personally enabled device” (COPE) environment.
  • Conducting various levels of privacy and data security training for executives and employees
  • Supports organizations through mergers, acquisitions, and reorganizations with regard to the handling of employee and customer data, and the safeguarding of that data during the transaction.
  • Representing organizations in matters involving inquiries into privacy and data security compliance before federal and state agencies including the HHS Office of Civil Rights, Federal Trade Commission, and various state Attorneys General.

Benefits counseling experience – Mr. Lazzarotti’s work in the benefits counseling area covers many areas of employee benefits law. Below are some examples of that work:

  • As part of the Firm’s Health Care Reform Team, he advises employers and plan sponsors regarding the establishment, administration and operation of fully insured and self-funded health and welfare plans to comply with ERISA, IRC, ACA/PPACA, HIPAA, COBRA, ADA, GINA, and other related laws.
  • Guiding clients through the selection of plan service providers, along with negotiating service agreements with vendors to address plan compliance and operations, while leveraging data security experience to ensure plan data is safeguarded.
  • Counsels plan sponsors on day-to-day compliance and administrative issues affecting plans.
  • Assists in the design and drafting of benefit plan documents, including severance and fringe benefit plans.
  • Advises plan sponsors concerning employee benefit plan operation, administration and correcting errors in operation.

Mr. Lazzarotti speaks and writes regularly on current employee benefits and data privacy and cybersecurity topics and his work has been published in leading business and legal journals and media outlets, such as The Washington Post, Inside Counsel, Bloomberg, The National Law Journal, Financial Times, Business Insurance, HR Magazine and NPR, as well as the ABA Journal, The American Lawyer, Law360, Bender’s Labor and Employment Bulletin, the Australian Privacy Law Bulletin and the Privacy, and Data Security Law Journal.

Mr. Lazzarotti served as a judicial law clerk for the Honorable Laura Denvir Stith on the Missouri Court of Appeals.