United States - California - Surveillance Technology Regulation

Overview

The San Francisco Stop Secret Surveillance Ordinance, formally known as Ordinance No. 107-19 and codified as Chapter 19B of the San Francisco Administrative Code, represents a landmark piece of legislation in the United States. Enacted in 2019, it made San Francisco the first U.S. city to explicitly ban the use of facial recognition technology by its municipal departments, including law enforcement. Beyond the facial recognition ban, the ordinance established a robust framework for democratic oversight and transparency regarding the acquisition, retention, and use of all other surveillance technologies by City departments. This framework requires departments to obtain approval from the Board of Supervisors, submit detailed Surveillance Impact Reports, and develop clear Surveillance Technology Policies, ensuring public debate and consideration of civil liberties before deployment.

The ordinance was motivated by concerns over privacy, civil rights, and the potential for surveillance technologies to exacerbate existing biases and lead to a 'security state' rather than genuine public safety. It emphasizes the importance of public debate and strong consideration of the impact on civil rights and civil liberties guaranteed by both the U.S. and California Constitutions.

However, the landscape of this oversight was significantly altered by the passage of Proposition E in March 2024. Proposition E specifically exempted the San Francisco Police Department (SFPD) from many of the prior approval requirements established by Chapter 19B, allowing the SFPD to acquire and use new surveillance technologies, including drones and facial recognition cameras, with reduced oversight from the Board of Supervisors and the Police Commission.

Definitions

Chapter 19B of the Administrative Code defines several key terms to establish the scope of the ordinance:

• Surveillance Technology: This is broadly defined as any software, electronic device, system utilizing an electronic device, or similar device used, designed, or primarily intended to collect, retain, process, or share audio, electronic, visual, location, thermal, biometric, olfactory, or similar information specifically associated with, or capable of being associated with, any individual or group. Examples provided include international mobile subscriber identity (IMSI) catchers, automatic license plate readers, closed-circuit television cameras, gunshot detection hardware, video and audio monitoring/recording technology, mobile DNA capture technology, biometric software (including facial, voice, iris, and gait-recognition), social media monitoring software, x-ray vans, and software designed to forecast criminal activity.
• Face Recognition Technology: This refers to any surveillance technology that performs face surveillance, which means an automated or semi-automated process by which a City Department identifies or verifies an individual based on the characteristics of their face, or which is used to generate or analyze a biometric template of an individual’s face.
• City Department: This includes any department, board, commission, office, or agency of the City and County of San Francisco.
• Surveillance Impact Report: A written report required for each surveillance technology, detailing its purpose, capabilities, potential impacts on civil liberties, data collection and retention policies, and safeguards.
• Surveillance Technology Policy: A written policy outlining the rules and guidelines for the use of a specific surveillance technology by a City Department.

Governance and Institutional Framework

The governance structure for surveillance technology under Chapter 19B is designed to ensure democratic oversight and accountability. The primary entities involved are:

• Board of Supervisors: The Board of Supervisors is the central approving authority. City departments must submit proposed Surveillance Technology Policies and Surveillance Impact Reports to the Board for approval before acquiring or using new surveillance technology, or continuing to use existing technology. The Board holds public hearings to facilitate community input.
• Committee on Information Technology (COIT): COIT plays a crucial role in developing and reviewing surveillance technology policies. Departments are expected to base their proposed policies on guidelines and templates developed by COIT. COIT reviews departmental submissions before they proceed to the Board of Supervisors.
• City Departments: Each City department is responsible for identifying any surveillance technologies it uses or intends to acquire. For each technology, the department must prepare a Surveillance Impact Report and a proposed Surveillance Technology Policy and submit them through the prescribed approval process. They are also responsible for adhering to approved policies and submitting annual reports.
• Controller (City Services Auditor): The Controller is mandated to annually audit the use of surveillance technology equipment and services by City departments. These audits assess conformity with approved Surveillance Technology Policy Ordinances and are reported to the Board of Supervisors.
• Mayor and City Attorney: The Mayor and City Attorney are also involved in the approval process for departmental policies, as outlined in the requirements for 19B approval.

Key Focus Areas

• Prohibition of Facial Recognition Technology: The ordinance explicitly makes it unlawful for any City Department to obtain, retain, access, or use any Face Recognition Technology or any information obtained from Face Recognition Technology. This ban applies across all City departments, establishing San Francisco as a pioneer in restricting this technology at the municipal level. Notable exemptions include federal operations at the San Francisco International Airport and the Port of San Francisco, which fall under federal jurisdiction. The ban does not apply to private entities or individuals.
• Community Control Over Surveillance (CCOPS) Framework: For all other surveillance technologies, the ordinance establishes a CCOPS-style framework. This requires City departments to engage in a transparent process involving public notice, community meetings, and Board of Supervisors approval before acquiring new surveillance technology or continuing to use existing systems. This ensures democratic debate and oversight.
• Surveillance Impact Reports (SIR) and Policies: Before any surveillance technology can be acquired or used, a department must submit a Surveillance Impact Report detailing the technology's capabilities, its necessity, its potential impact on civil rights and liberties, and a proposed Surveillance Technology Policy outlining its usage guidelines, data retention, and sharing practices. These documents are subject to public review and Board approval.
• Data Protection and Privacy Safeguards: The ordinance's general findings explicitly acknowledge that surveillance technology may threaten the privacy of all, with historical disproportionate impacts on certain communities. It mandates strong consideration of civil rights and civil liberties, including those guaranteed by the First, Fourth, and Fourteenth Amendments to the U.S. Constitution and Sections 1, 2, and 13 of Article I of the California Constitution, during the approval process for surveillance technologies. Policies must address data retention and privacy.
• Transparency and Public Accountability: A core tenet of the ordinance is transparency. All Surveillance Impact Reports and Surveillance Technology Policies are public records. Annual audits and reports are also made public, fostering ongoing accountability and allowing the community to monitor the use of these technologies.
• Impact of Proposition E (2024) on SFPD Oversight: Proposition E, approved by San Francisco voters on March 5, 2024, significantly altered the application of Chapter 19B for the San Francisco Police Department (SFPD). It allows the SFPD to acquire and deploy new surveillance technology, including drones and surveillance cameras (potentially with facial recognition capabilities), without the prior approval of the Board of Supervisors or the Police Commission. Instead, the SFPD is required to submit a use policy for the technology within one year of its acquisition or use. This change effectively removes the proactive democratic oversight mechanism for SFPD's surveillance technology acquisitions that Chapter 19B originally established.

Implementation Framework

The implementation of the Stop Secret Surveillance Ordinance follows a multi-stage process:

1. Identification: City departments identify all surveillance technologies currently in use or planned for acquisition.
2. Policy and Report Development: For each identified technology, the department, in consultation with the Committee on Information Technology (COIT), develops a proposed Surveillance Technology Policy and a Surveillance Impact Report. These documents must address the necessity, capabilities, and civil liberties impacts of the technology.
3. Public Engagement: The proposed policy and report are made public, and opportunities for public comment and debate are provided, often through Board of Supervisors committee hearings.
4. Review and Approval: COIT reviews the submissions and provides recommendations. The Board of Supervisors then reviews the proposed policy and report, conducts public hearings, and votes on whether to approve the Surveillance Technology Policy Ordinance. Approval by the Board, Mayor, and City Attorney is required.
5. Procurement and Deployment: Once approved, the department can proceed with the acquisition and deployment of the surveillance technology in accordance with the approved policy.
6. Post-Prop E changes for SFPD: For the SFPD, Proposition E (2024) changed this process such that they can acquire and use new surveillance technology first, and then submit a policy within one year, bypassing the prior approval requirement of the Board of Supervisors.

Monitoring and Evaluation

Monitoring and evaluation are integral to the ordinance's effectiveness and ongoing accountability:

• Annual Surveillance Reports: City departments are required to submit annual reports detailing their use of approved surveillance technologies, data sharing practices, and any complaints received regarding their use.
• Annual Audits: The Controller, acting as the City Services Auditor, is mandated to conduct annual audits of the use of surveillance technology by City departments. These audits assess compliance with the approved Surveillance Technology Policies and the broader requirements of Chapter 19B. The audit reports are then submitted to the Board of Supervisors.
• Public Availability: Both the annual departmental reports and the Controller's audit reports are public records, ensuring transparency and enabling public scrutiny of surveillance practices.

Penalties, Liability, and Appeals

Chapter 19B primarily establishes a mandatory approval process for surveillance technology. While the ordinance itself does not explicitly detail specific criminal or civil penalties for violations, non-compliance with the requirements (e.g., using unapproved technology, failing to submit reports, or violating an approved policy) would constitute unlawful action by a City department or official. Such actions could lead to administrative consequences, injunctions, or other legal remedies available under municipal law for unauthorized government action. The ordinance's emphasis is on preventing misuse through proactive oversight rather than outlining post-violation penalties, though it does include a provision for temporary use of unapproved surveillance technology in exigent circumstances.

Relationship to Other Instruments

The San Francisco Stop Secret Surveillance Ordinance is a foundational local instrument that set a precedent for municipal oversight of surveillance technology in the United States. It operates within the broader legal framework of:

• Federal Law: The ordinance respects federal jurisdiction, exempting federal operations at SFO and the Port of San Francisco. Federal laws related to privacy and surveillance (e.g., ECPA, FISA) generally apply to federal agencies and may preempt local regulations in specific areas.
• California State Law: The ordinance aligns with California's strong emphasis on privacy, including constitutional rights to privacy. It complements state-level efforts to regulate data and technology. Notably, the California Transparency in Frontier Artificial Intelligence Act (Senate Bill 53), authored by State Senator Scott Wiener (D-San Francisco), was signed into law on September 29, 2025, and becomes effective January 1, 2026. This state law requires large AI companies to disclose safety and security protocols and report critical safety incidents, and includes whistleblower protections, addressing AI at a broader, industry-wide level in California. While SB 53 is not an amendment to the San Francisco ordinance, it represents a significant, complementary regulatory development in AI and transparency within the state where San Francisco is located.
• Other Municipal Laws: San Francisco was the first U.S. city to enact such a ban, inspiring similar legislation or discussions in other cities like Oakland and Berkeley, which later adopted similar Community Control Over Police Surveillance (CCOPS) protections and facial recognition bans.
• Proposition E (2024): As detailed above, Proposition E, a city-wide ballot measure passed in March 2024, directly impacts the implementation of Chapter 19B by significantly reducing the oversight requirements for the San Francisco Police Department's acquisition and use of surveillance technology, including facial recognition cameras and drones. This measure acts as an amendment to the enforcement and application of the original ordinance's framework for the SFPD.

International Alignment

While primarily a local ordinance, San Francisco's ban on government facial recognition technology aligns with a growing international trend among democratic jurisdictions to impose stricter regulations or outright bans on biometric surveillance, particularly facial recognition, due to concerns about privacy, civil liberties, and potential for bias and misuse. Many jurisdictions globally are grappling with how to balance security interests with fundamental rights in the age of advanced surveillance technologies. San Francisco's pioneering role contributed to the global discourse on responsible technology governance.

Implementation Timeline

Compliance Checklist

Sources and References