First Amendment groups say that a proposed Fresno City Council resolution to explore keeping sex offenders from attending City Hall meetings in person using facial recognition technology would, if implemented, violate California law.

David Loy, legal director for the First Amendment Coalition, said that while he understands the councilmembers’ concerns, the state’s landmark 1958 Brown Act guarantees the right of everybody to attend government meetings, even if they are sex offenders.

The city council’s resolution directs the city attorney to use the courts to designate City Hall as a place frequented by children. To give the law “teeth,” Fresno City Councilmember Nick Richardson, who sponsored the item, said he wants the city attorney to look into the legality and expense of using facial recognition to examine anyone coming in the building to attend council meetings.

While the resolution only looks at the legality of forbidding sex offenders from attending or implementing facial recognition, Loy said that if the city decided to put in the limits, it would be a “serious” violation of California law.

“This resolution doesn’t yet do that, to be clear, but if that were on the table, then that would be a serious Brown Act problem,” Loy said.

California Affirms Right to Attend Meetings Anonymously

At the Feb. 26 city council meeting, several councilmembers spoke up about supporting an ordinance to keep sex offenders from running for city office, saying children often come to meetings and they need to be protected.

Richardson on Friday told GV Wire that following that discussion he felt creating the ordinance would be a compromise that protects children and still allows sex offenders to participate given that after July, the Brown Act will require that government meetings allow remote participation.

Loy, however, said those Brown Act changes are meant to only make participation easier, not to be a substitute.

Even though facial recognition is a more recent technology, California law has twice affirmed that people have the right to attend meetings anonymously. Using technology to identify people forces people to identify themselves.

“The right of the Brown Act is the right to attend council meetings anonymously and arguably, it can present concerns if people are being scanned and compared to a database and therefore identified as attending a council meeting.”

Facial Recognition Prone to Abuse: Electronic Frontier Foundation

The technology also has potential for abuse. The Electronic Frontier Foundation has said facial recognition tech has been used by law enforcement to “misidentify and arrest innocent people.” The advocacy group said immigration officers have also used the technology to identify people.

Adam Schwartz, privacy litigation director for the foundation, in an email to GV Wire said government shouldn’t use facial recognition devices.

“Government should not be using face recognition at all, because it is a dangerous, error-prone, discriminatory technology,” said Schwartz. “It is especially inappropriate as a means to screen members of the public seeking to participate in democratic self-government.”