Brookline’s Face Surveillance Technology Ban
Summary
The use of face surveillance technology by any Brookline department,
agency, bureau, and/or subordinate division of the Town of Brookline, andany person or entity acting on behalf of Brookline, including any officer,
employee, agent, contractor, subcontractor, or vendor, is prohibited by law.
BackgroundIn the fall of 2019, Brookline Town Meeting considered a citizen’s petition
proposing a by-law to ban the use of face surveillance technology by theTown of Brookline and its agents (warrant article 25).
The proposed by-law was supported by a unanimous Select Board, theBrookline Commission for Women; the School Committee; the Commission
for Diversity, Inclusion and Community Relations, and the Advisory
Committee, all of which held at least one public hearing on the article.
The Surveillance Technology and Military Type Equipment Study
Committee (STMTESC) did not support the warrant article, citing law
enforcement concerns. Instead, the committee voted to support anamendment written by three committee members which would have allowed
police use.
Warrant Article Documents and STMTESC Amendment
The language of the face surveillance by-law, the language of the STMTESCamendment, as well as commission and committee letters, reports andexplanations provided to Town Meeting, appear in the Fall 2019 Special
Town Meeting Combined Reports (the language Town Meeting voted
appears on page 25-11); the warrant article 25 materials begin on page 289 of447 of the Combined Reports. The STMTESC amendment appears on page304.

On December 11, 2019, Town Meeting passed the by-law to ban facesurveillance by a vote of 179 in favor – 9 opposed – 12 abstentions; it
rejected the STMTESC amendment by a vote of 13 in favor – 170 opposed –13 abstentions.
Town Meeting deliberations regarding the face surveillance warrant article
and amendment are available here, beginning approximately 26 minutes into
the evening on December 11, 2019.
The STMTESC timeline• On June 25, 2019, the committee heard that the petitioner was preparing
to file a warrant article banning face surveillance in Brookline;• August 27, 2019, the warrant article was filed in the Select Board’s officeon; the committee did not meet in August;• September 12, 2019, the petitioner introduced the warrant article to thecommittee, explaining the sections; the committee did not discuss thearticle in detail;• October 10 the Chief of Police presented his concerns regarding thewarrant article;• October 18 the committee met again to discuss the warrant article during
which a few members of the committee determined that they were going
to present their own amendment to the warrant article;• October 23, the committee held a public hearing, a requirement formaking a recommendation to Town Meeting. No members of the public,
with the exception of ACLU representatives, were in attendance.
• October 23, upon concluding their own hearing, members of theSTMTESC attended the Advisory Committee’s Public Safety
subcommittee hearing on the warrant article, which was televised. That
hearing lasted for more than three hours, and the petitioner, the chief ofpolice, members of the public as well as members of the STMTESC wereable to speak and be heard.
• October 30, the STMTESC first reviewed and voted on a proposed
amendment crafted by a few committee members; the committee voted 4 –1 – 1 in favor of that amendment. The petitioner of the by-law, also amember of the STMTESC, was the sole vote against the committee’s
proposed amendment.
By-law Banning Face Surveillance as passed by Town Meeting
On December 11, 2020, Brookline Town Meeting passed the following
language (found on page 25-11 of the Combined Reports), and banned theuse of face surveillance by a vote of 179 – 9 – 12 in support of the following
language:
ARTICLE 8.39
BAN ON TOWN USE OF FACE SURVEILLANCESECTION 8.39.1 DEFINITIONS
1. “Face surveillance” shall mean an automated or semi-automated process thatassists in identifying an individual, or in capturing information about an individual,
based on the physical characteristics of an individual’s face.
2. “Face surveillance system” shall mean any computer software or application that
performs face surveillance.
3. “Brookline” shall mean any department, agency, bureau, and/or subordinate
division of the Town of Brookline.
4. “Brookline official” shall mean any person or entity acting on behalf of Brookline,
including any officer, employee, agent, contractor, subcontractor, or vendor.
SECTION 8.39.2 BAN ON TOWN USE OF FACE SURVEILLANCE
1. It shall be unlawful for Brookline or any Brookline official to:a. obtain, possess, access, or use any face surveillance system;b. enter into a contract or other agreement with any third party for the purposeof obtaining, possessing, accessing, or using, by or on behalf of Brookline or
any Brookline official any face surveillance system; orc. issue any permit or enter into a contract or other agreement that authorizes
any third party to obtain, possess, access, or use (i) any face surveillancesystem, or (ii) information derived from a face surveillance system based on
photographic, video or other images originally captured within the Town ofBrookline.
2. Nothing in Section 8.39.2(1) shall prohibit Brookline or any Brookline official from:a. using evidence relating to the investigation of a specific crime that may havebeen generated from a face surveillance system; orb. obtaining or possessing (i) an electronic device, such as a cell phone orcomputer, for evidentiary purposes, or (ii) an electronic device, such as a cell
phone or tablet, that performs face surveillance for the sole purpose of user
authentication;

c. using face recognition on an electronic device, such as a cell phone or tablet,
owned by Brookline or by such official, for the sole purpose of user
authentication;d. using social media or communications software or application forcommunicating with the public, provided such use does not include theaffirmative use of any face surveillance;e. using automated redaction software, provided such software does not havethe capability of performing face surveillance; orf. complying with the National Child Search Assistance Act.
SECTION 8.39.3 ENFORCEMENT
1. Face surveillance data collected or derived in violation of this By-Law shall beconsidered unlawfully obtained and shall be deleted upon discovery, subject toapplicable law.
2. No data collected or derived from any use of face surveillance in violation of thisBy-Law and no evidence derived therefrom may be received in evidence in any
Town proceeding.
3. Any violation of this By-Law constitutes an injury and any person may instituteproceedings for injunctive relief, declaratory relief, or writ of mandate in any courtof competent jurisdiction to enforce this By-Law. An action instituted under thisparagraph shall be brought against the respective Town department, and theTown and, if necessary to effectuate compliance with this By-Law, any othergovernmental agency with possession, custody, or control of data subject to thisBy-Law.
4. Violations of this By-Law by a Town employee shall result in consequences thatmay include retraining, suspension, or termination, subject to due processrequirements and provisions of collective bargaining agreements.
5. Nothing in this Article shall be construed to limit any individual’s rights understate or federal law.
SECTION 8.39.4 SEVERABILITY
1. If any portion or provision of this By-Law is declared invalid or unenforceable bya court of competent jurisdiction or by the Office of the Attorney General, theremaining provisions shall continue in full force and effect.

Petitioner’s Amendments to the by-law
Through the Town Meeting process the petitioner amended the warrant
article as originally submitted on August 27th, 2019 (available in theaforementioned Fall 2019 Combined Reports). Notable additions include:• the addition of a severability clause• the addition of section 8.39.2(2) clarifying what is and is not
permissible under the by-law.

The Section 8.39.2(2) clarifying language crafted in Brookline has
subsequently been included in bans passed in other Massachusetts cities andtowns, including the City of Boston. Boston City Council unanimously
passed a ban on June 24, 2019 which was signed by Mayor Walsh on June30, 2019.
Surveillance Technology and Military Type Equipment StudyCommittee Amendment
The majority of members of the Surveillance Technology and Military TypeEquipment Study Committee did not support warrant article 25 and initiallydiscussed recommending a vote of NO ACTION to Town Meeting; however,on October 30, by a vote of 4-1-1, the committee voted instead to amend thelanguage of the warrant article as follows:
Add as subsection (3) under SECTION 8.39.2 BAN ON TOWN USE OF FACESURVEILLANCE:
3) Not withstanding section 8.39.2(1), the Brookline Police Department may use (but notacquire or deploy) face surveillance technology for specific and narrow purposesapproved by the Select Board. (a) The Select Board may attach conditions to such uses.
(b) In the absence of an approved list of authorized purposes, use is permitted before
Jan 1, 2021 provided notice of the nature of the use is provided within 30 days to theSelect Board, with quarterly reporting to the Surveillance Technology and Military-Type
Equipment Study Committee.

The effect of the committee’s amendment would been to ban the use of facesurveillance technology by all Brookline departments and officials except thepolice department, and would have allowed unspecified police use bereported to the Select Board within 30 days of such use; additionally thelanguage called for creation of a list of to be determined authorized uses byJanuary 1, 2021. The committee also designated itself as the committee
which would have reviewed quarterly face surveillance technology reporting.
The STMTESC expressed concerns regarding the ban as originally proposed
as well as the ban after it had been amended by the petitioner. Their concerns

were primarily related to the impact the proposed by-law would have on thepolice department.
The STMTESC held a public hearing on October 23, 2019 to hear testimony
regarding the amendment. No members of the Brookline public were inattendance. STMTESC members then attended the Advisory Committee
Public Safety Subcommittee hearing on the 23rd in which there wasconsiderable discussion and testimony by all. That hearing was well attended,
included public testimony as well as a statement from the Police Chief andSTMTESC members. The Public Safety subcommittee of the Advisory
Committee did not vote that evening.
The committee’s motion to amend failed at Town Meeting by a vote of 13 infavor, 170 opposed and 13 abstentions.
The only other board, commission or committee who chose to consider
support for the STMTESC amendment, aside from the SurveillanceTechnology and Military Type Study Committee itself, was the Advisory
Committee, which, on December 11, 2019 voted to recommend Town
Meeting vote against the amendment with 0 in favor, 20 opposed and 4abstentions.
Proposed Next Steps
Next steps include outreach to Brookline Officials, department heads andemployees, in order to ensure that all are aware of the new law and its
implications. Appropriate education will ensure that as the Town goes about
its business such as entering into contracts, downloading software upgrades,
using social media platforms and the like, without purchasing, enabling,
permitting or using face surveillance as defined by the by-law, in order toensure compliance.