(a) Except as stated in subsection (c), and in accordance with the procedures set forth in subsection (b), a Department must obtain Board of Supervisors approval by ordinance of a Surveillance Technology Policy under which the Department will acquire and use Surveillance Technology, prior to engaging in any of the following:
(1) Seeking funds for Surveillance Technology, including but not limited to applying for a grant, or accepting state or federal funds, or public or private in-kind or other donations;
(2) Acquiring or borrowing new Surveillance Technology, including but not limited to acquiring Surveillance Technology without the exchange of monies or other consideration;
(3) Using new or existing Surveillance Technology for a purpose, in a manner, or in a location not specified in a Surveillance Technology Policy ordinance approved by the Board in accordance with this Chapter 19B;
(4) Entering into agreement with a non-City entity to acquire, share, or otherwise use Surveillance Technology; or
(5) Entering into an oral or written agreement under which a non-City entity or individual regularly provides the Department with data or information acquired through the entity’s use of Surveillance Technology.
(b) The Board of Supervisors may approve a Surveillance Technology Policy ordinance under subsection (a) only under the following circumstances:
(1) The Department seeking Board approval under subsection (a) first submits to COIT a Surveillance Impact Report for the Surveillance Technology to be acquired or used;
(2) Based on the Surveillance Impact Report submitted by the Department, COIT develops a Surveillance Technology Policy for the Surveillance Technology to be acquired or used;
(3) At a public hearing at which COIT considers the Surveillance Technology Policy, COIT recommends that the Board of Supervisors adopt, adopt with modifications, or decline to adopt the Surveillance Technology Policy for the Surveillance Technology to be acquired or used.
(c) A Department is not required to obtain Board of Supervisors approval by ordinance of a Surveillance Technology Policy if the Department’s acquisition or use of the Surveillance Technology complies with a Surveillance Technology Policy previously approved by the Board by ordinance..2
Additionally, (1) the Police Department may acquire and/or use a Surveillance Technology so long as it submits a Surveillance Technology Policy to the Board of Supervisors for approval by ordinance within one year of the use or acquisition, and may continue to use that Surveillance Technology after the end of that year unless the Board adopts an ordinance that disapproves the Policy; and (2) this Chapter 19B shall not apply to the Police Department’s use of public safety cameras under Administrative Code Chapters 19, or unassisted aerial vehicles (“UAVs,” also known as “drones”) under Administrative Code Chapter 96I
, so long as Chapters 19 and 96I expressly exempt public safety cameras and drones from this Chapter.
(d) Notwithstanding the provisions of this Chapter 19B, it shall be unlawful for any Department to obtain, retain, access, or use: 1) any Face Recognition Technology on City-issued software or a City-issued product or device; or 2) any information obtained from Face Recognition Technology on City-issued software or a City-issued product or device. This subsection (d) is subject to the exceptions in subsections (e)-(g) and the qualifications in subsections (h)-(l).
(e) A Department’s inadvertent or unintentional receipt, retention, access to, or use of any information obtained from Face Recognition Technology shall not be a violation of subsection (d), provided that:
(1) The Department does not request or solicit its receipt, access to, or use of such information; and
(2) The Department logs such receipt, access to, or use in its Annual Surveillance Report.
(f) It shall not be a violation of subsection (d) for a City Department to possess Face Recognition Technology on City-issued software or a City-issued product or device, provided that:
(1) The Face Recognition Technology is a stock, manufacturer-installed capability, bundled with software or stored on a product or device, and that the functions unrelated to Face Recognition Technology are necessary to perform essential City functions;
(2) The software, product, or device was not acquired for the purpose of performing the Face Recognition Technology function;
(3) The Face Recognition Technology cannot be deleted from the software, product, or device; and
(4) The Department does not use the Face Recognition Technology.
(g) It shall not be a violation of subsection (d) to acquire or obtain a software, product, or device that includes Face Recognition Technology provided that:
(1) In advance of obtaining the software, product, or device, the Department makes a written finding that the software, product, or device is not being acquired or obtained for the purpose of performing the Face Recognition Technology Function;
(2) In advance of obtaining the software, product, or device, the Purchaser or the Purchaser’s designee makes a written finding that the Face Recognition Technology is a stock, manufacturer-installed capability bundled with software, or stored on a product or device; that the functions unrelated to Face Recognition Technology are necessary to perform essential City functions; and that the software, product, or device is unavailable without the stock, manufacturer-installed Face Recognition Technology; and
(3) The City Department obtains approval of a Surveillance Technology Ordinance under this Chapter 19B where the software, product, or device constitutes Surveillance Technology.
(h) A City Department that possesses Face Recognition Technology shall certify annually compliance with subsections (e)-(l) and post that certification and the written findings required by subsection (g) on the Department website.
(i) If either the District Attorney or Sheriff certifies in writing to the Controller that acquisition of Surveillance Technology is necessary to perform an investigative or prosecutorial function and provides in writing to the Controller either an explanation of how compliance with this Chapter 19B will obstruct their investigative or prosecutorial function or a declaration that the explanation itself will obstruct either function, the District Attorney or Sheriff shall simultaneously submit a copy of the document to the Clerk of the Board of Supervisors so that the Board in its discretion may hold a hearing and request that the District Attorney or Sheriff appear to respond to the Board’s questions regarding such certification, explanation, and/or declaration. The written certification shall specify the Surveillance Technology acquired, or to be acquired.
(j) Nothing in this Chapter 19B shall be construed to obstruct the constitutional and statutory powers and duties of the District Attorney, the Sheriff, the Chief Adult Probation Officer, or the Chief Juvenile Probation Officer.
(k) Except as restricted by subsection 19B.2(d) or expressly restricted in a Surveillance Technology Policy developed pursuant to subsection 19B.2(a)(5), nothing in this Chapter 19B shall be construed to prohibit, restrict, or interfere with the receipt, access to, or use by a City Department of information gathered by a non-City entity or individual from Surveillance Technology.
(l) Nothing in this Chapter 19B
shall prohibit, restrict, or interfere with a Department’s use of Surveillance Technology to conduct internal investigations involving City employees, contractors, and volunteers, or the City Attorney’s ability to receive or use, in preparation for or in civil or administrative proceedings, information from Surveillance Technology (excluding Face Recognition Technology to the extent prohibited under Section 19B.2
.(d)(1 1
) that any City agency, department, or official gathers or that any other non-City entity or person gathers.
(Added by Ord. 103-19, File No. 190110, App. 5/31/2019, Eff. 7/1/2019; Ord. 107-19, File No. 190568, App. 6/14/2019, Eff. 7/15/2019; amended by Ord. 286-19, File No. 190926, App. 12/20/2019, Eff. 1/20/2020; Proposition E, 3/5/2024, Eff. 4/12/2024)
CODIFICATION NOTES