Amended  IN  Assembly  March 02, 2023

CALIFORNIA LEGISLATURE— 2023–2024 REGULAR SESSION

Assembly Bill
No. 642


Introduced by Assembly Member Ting
(Principal coauthor: Senator Bradford)
(Coauthor: Assembly Member McCarty)

February 09, 2023


An act relating to law enforcement agency regulations. An act to add Section 13680 to the Penal Code, relating to law enforcement agency regulation.


LEGISLATIVE COUNSEL'S DIGEST


AB 642, as amended, Ting. Law enforcement agencies: facial recognition technology.
Existing law, generally, regulates state and local law enforcement agencies regarding subject matter that includes the selection and training of peace officers, the maintenance and release of records, the use of force, and the use of certain equipment. Previous law, until January 1, 2023, prohibited the use of real-time facial recognition technology by law enforcement agencies in connection with body-worn cameras.
This bill, commencing July 1, 2024, would require any law enforcement agency, as defined, that uses facial recognition technology (FRT), as defined, to have a written policy governing the use of that technology. The bill would require any FRT system used to meet certain national standards and would limit the use of FRT to use as an investigative aid, as described. The bill would specifically prohibit the use of any FRT-generated match from being the sole basis for probable cause in an arrest, search, or warrant. The bill would also require an agency using FRT to post their written policy and an annual summary of FRT usage, as specified, on their internet website.

Existing law, generally, regulates state and local law enforcement agencies regarding subject matter that includes the selection and training of peace officers, the maintenance and release of records, the use of force, and the use of certain equipment. Previous law, until January 1, 2023, prohibited the use of real-time facial recognition technology by law enforcement agencies in connection with body-worn cameras.

This bill would express the intent of the Legislature to enact legislation relating to the use of facial recognition technology by law enforcement agencies.

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NOYES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 13680 is added to the Penal Code, to read:

13680.
 (a) Commencing July 1, 2024, a law enforcement agency that operates facial recognition technology (FRT) shall meet both of the following requirements:
(1) Only FRT systems with algorithms that have been evaluated under the National Institute of Standards and Technology Face Recognition Vendor Test Program and have demonstrated an accuracy score of at least 98 percent true positives within two or more datasets relevant to investigative applications on a program report shall be used.
(2) The agency shall have a written policy that includes all of the required provisions prescribed in subdivision (b).
(b) The written policy required by subdivision (a) shall include, without limitation, all of the following:
(1) A requirement that FRT use be limited to specifically authorized personnel who have received POST-certified training in the use of FRT.
(2) A requirement that a manager be assigned to oversee the FRT program.
(3) A policy that describes the parameters of acceptable inputs to be used for queries of available databases and that prohibits the use of sketches or other manually produced images.
(4) An acceptable use policy that includes, without limitation, specific allowances and restrictions on use for all of the following:
(A) To identify a suspect in alleged criminal behavior where reasonable suspicion exists that a crime has been or is being committed and the person whose image is being analyzed is the person who has committed or is committing that crime.
(B) To identify a victim or witness to a crime.
(C) To identify an unidentified deceased person.
(D) To identify a person who is missing, incapacitated, or unable to identify themselves.
(E) To identify a person who is lawfully detained and has not produced valid identification.
(F) To investigate a credible threat of violence.
(G) To mitigate an imminent threat to public safety.
(5) A prohibited use policy that prohibits, without limitation, both of the following:
(A) The use of FRT to identify an individual solely because of their race, color, religious beliefs, sexual orientation, gender, disability, national origin or membership in any other class protected by law against discrimination.
(B) The use of FRT to identify an individual solely engaged in the exercise of a constitutionally protected right, including, without limitation, speech, public assembly, or the practice of religion, when the person has not individually violated any law, unless necessary to identify a victim or witness of a serious or violent felony, or to defend against an imminent or immediate threat to death or serious bodily injury.
(6) A requirement that a record of all FRT queries be maintained by the agency.
(c) FRT is an investigative tool to be used as an aid in identifying persons and generating investigative leads. An FRT-generated match shall not, under any circumstances, provide the sole basis for probable cause for an arrest, search, or affidavit for a warrant.
(d) Any law enforcement agency that uses FRT shall post both of the following on their internet website:
(1) A copy of the FRT policy described in subdivision (b).
(2) Commencing on January 1, 2025, and annually thereafter, an annual report summarizing FRT usage for the previous calendar year.
(e) (1) The admissibility or exclusion of an FRT query result as evidence in any court proceeding shall be governed by Chapter 4 (commencing with Section 305) of Division 2 of the Evidence Code.
(2) This subdivision is declarative of existing law.
(f) As used in this section, the following terms have the following meanings:
(1) “Facial recognition technology” or “FRT” means a system that compares an input image of an unidentified human face against a database of known persons and, based on biometric data, generates possible matches to aid in identifying the person in the input image. For purposes of this section, FRT does not include any access control system used by a law enforcement agency that uses biometric inputs to confirm the identity of employees or other approved persons for the purpose of controlling access to any secured place, device, or system.
(2) “Law enforcement agency” means any department or agency of the state or any political subdivision thereof that employs any peace officer as described in Section 830.

SECTION 1.

It is the intent of the Legislature to enact legislation relating to the use of facial recognition technology by law enforcement agencies.