Bill Text: CA AB642 | 2023-2024 | Regular Session | Amended
Bill Title: Law enforcement agencies: facial recognition technology.
Spectrum: Partisan Bill (Democrat 5-0)
Status: (Failed) 2024-02-01 - From committee: Filed with the Chief Clerk pursuant to Joint Rule 56. [AB642 Detail]
Download: California-2023-AB642-Amended.html
|
Amended
IN
Assembly
May 01, 2023 |
|
Amended
IN
Assembly
April 19, 2023 |
|
Amended
IN
Assembly
April 04, 2023 |
|
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) (Coauthors: Assembly Members Jackson, Lee, and McCarty) |
February 09, 2023 |
An act to add Title 4.8 (commencing with Section 13675) to Part 4 of 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 would prescribe the acceptable and prohibited uses for facial recognition technology (FRT), as defined, by a law enforcement agency or peace officer, as defined. The bill would set certain requirements for FRT systems and reference databases, as defined, used by law enforcement agencies. The bill would require the Department of Technology, in
consultation with the Chief of the Office of Information Security, to issue standards to ensure the confidentiality and cybersecurity of FRT data and results. The bill would require law enforcement agencies to establish written policies that adhere to those standards. The bill would require law enforcement agencies utilizing FRT to keep certain records and to annually report certain data to the California State Auditor. The bill would require any law enforcement agency utilizing FRT to have a written policy, as specified, and to post that policy on their internet website. The bill would require a law enforcement agency to provide certain information to any person that FRT is used to identify.
The bill would also require each district attorney’s office, city prosecutor’s office, and the Attorney General to annually report certain data to the California State Auditor.
By imposing a new reporting
requirement on district attorneys and city prosecutors, this bill would impose a state-mandated local program.
The bill would require the California State Auditor to annually analyze the data submitted and to prepare and publicize a report, as specified.
The bill would authorize a person harmed by a violation of these provisions to bring a civil action for damages, including statutory damages, as specified.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions
noted above.
Digest Key
Vote: MAJORITY Appropriation: NO Fiscal Committee: YES Local Program: YESBill Text
The people of the State of California do enact as follows:
SECTION 1.
Title 4.8 (commencing with Section 13675) is added to Part 4 of the Penal Code, to read:TITLE 4.8. Use of Facial Recognition Technology by Law Enforcement Agencies and Officers
13675.
As used in this title, the following terms are defined as follows:(a) “Arrest photograph database” means a database populated primarily by booking or arrest photographs or other photographs of persons with law enforcement contacts.
(b) (1) “Facial recognition technology” or “FRT” means a system that compares a probe image of an unidentified human face against a reference photograph database, and, based on biometric data, generates possible matches to aid in identifying the person in the probe image.
(2) FRT includes any surveillance system
that actively uses FRT to identify persons in a surveilled area in real time.
(3) 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.
(c) “Law enforcement agency” means any department or agency of the state or any political subdivision thereof that employs any peace officer.
(d) “Peace officer” means any officer described in Section 830.
(e) “Probe image” means an image of a person that is searched against a database of known, identified persons or an unsolved photograph
file.
(f) “Reference photograph database” means a database populated with photographs of individuals that have been identified, including databases composed of driver’s licenses or other documents made or issued by or under the authority of the state, a political subdivision thereof, databases operated by third parties, and arrest photograph databases.
13675.1.
(a) A peace officer is authorized to use or request the use of FRT for any of the following reasons:(1) To assist in identifying a person that the officer has reasonable suspicion to believe has committed a felony.
(2) To assist in identifying any person who is deceased or who has been reported missing pursuant to Section 14211.
(3) To assist in identifying any person who has been lawfully arrested, during the process of booking or during that person’s custodial detention.
(4) To
assist in identifying any person if a peace officer determines that an emergency situation exists that involves immediate danger of death or serious physical injury to any person and the identification of that person is necessary to prevent that death or injury.
(b) If a peace officer uses or requests the use of FRT pursuant to subdivision (a), the officer shall document all of the following information:
(1) The identity of the peace officer using or requesting the use of FRT, and, if applicable, the officer authorizing the use or request.
(2) A detailed description, as available, of the person being identified.
(3) Any photograph or video being used
as the probe image.
(4) Any details regarding other investigative measures taken to identify the person and an explanation of why those measures failed or are reasonably unlikely to succeed.
(c) (1) Beginning on July 1, 2024, and every six months thereafter, the custodian of any arrest photograph database being used in conjunction with FRT shall remove from the database any of the following images:
(A) Any photograph of a person under 18 years of age.
(B) Any photograph of an arrested or detained person who has been released without being charged with an offense, or whose charges have been dismissed.
(C) Any photograph of an arrested or detained person who has subsequently been acquitted of the charged offense.
(D) Any photograph of a person whose conviction has been expunged, has been exonerated of the crime, or who has had their conviction reversed on appeal.
(2) This section applies only to the use of a reference photograph database for the use of FRT and shall not be construed to prohibit a peace officer from using any other investigative database, including a fingerprint database.
(3) Any agency that maintains and operates an arrest photograph database shall establish procedures to ensure compliance with this subdivision.
13675.2.
(a) Use FRT to identify any person solely on the basis that the person is exercising rights guaranteed by the United States Constitution, including free assembly, association, and speech.
(b) Rely on actual or perceived race, ethnicity, national origin, religion, disability, gender,
gender identity, or sexual orientation in selecting a person to identify using FRT, except when there is trustworthy information, relevant to the locality and timeframe, in the context of a particular area and for a particular period of time, that links a person with a particular characteristic described in this subdivision to an identified criminal incident or scheme.
(c)Share FRT data with any state or federal agency for the purpose of enforcing federal immigration law.
(d)(1)Provide the results of, or information derived from, the use of FRT to any individual or to any agency or department in another state regarding the provision of lawful gender-affirming health care or gender-affirming mental health care performed in this state.
(c) Notwithstanding any other provision of this title, release any FRT data or results, or allow access to the databases used with FRT, in response to a subpoena or request if that subpoena or request is in violation of the California Values Act (Chapter 17.25 (commencing with Section 7284) of Division 7 of Title 1 of the Government Code).
(d) (1) Notwithstanding any other provision of this title, release any FRT data or results, or allow access to databases used with FRT, in response to a subpoena or request if that subpoena or request is based on any of the following:
(A) Another state’s laws that interfere with a person’s rights under the Reproductive Privacy Act (Article 2.5 (commencing with Section 123460) of Chapter 2 of Part 2 of Division 106 of the Health and Safety Code).
(B) A foreign penal civil action, as defined in Section 2029.200 of the Code of Civil Procedure.
(C) An investigation related to a natural person seeking gender-affirming health care or gender-affirming mental health care.
(2) As used in this subdivision, gender affirming health care and gender affirming mental health care gender-affirming health care and gender-affirming mental health care
have the same meaning as in Section 16010.2 of the Welfare and Institutions Code.
(e) (1) Provide the results of, or information derived from, the use of FRT to any individual or agency or department in another state regarding the provision of abortion services in this state.
(2) For purposes of this subdivision and subdivision (d), information derived from the use of FRT means information that would not have been discovered or obtained but for the use of FRT, regardless of any claim that the information would inevitably have been discovered or obtained through other means.
(f) Use an FRT match as the sole basis upon which probable cause is established for a search, arrest, or affidavit
for a warrant. Any peace officers using information obtained from the use of FRT shall examine results with care and consider the possibility that matches could be inaccurate.
(g) Use FRT in conjunction with any reference photograph database that contains information, including images, obtained by any of the following means:
(1) In a manner that violates federal or state law.
(2) In a manner that violates a service agreement between a provider of an electronic communication service to the public or a provider of a remote computing service and customers or subscribers of that provider.
(3) In a manner that is inconsistent with the privacy policy of a
provider described in paragraph (2), if applicable.
(4) By deceiving a person whose information was obtained.
(5) Through the unauthorized access of an electronic device or online account.
(6) In violation of a contract, court settlement, or other binding legal agreement.
(7) From unlawful or unconstitutional practices by any governmental official or entity.
13675.3.
(a) By no later than January 31, 2025, and annually thereafter, each law enforcement agency using FRT, including agencies whose officers use or request the use of the FRT of another agency, shall prepare and submit a report to the California State Auditor containing only the following information regarding the use of FRT, as applicable:(1) The information required to be documented by subdivision (b) of Section 13675.1 for each use or request for facial recognition.
(2) Whether modifications were made to any probe images and what those modifications were.
(3) The arrests that FRT results contributed to, and the offenses for which the arrests were made, disaggregated by race, ethnicity, gender, and age.
(4) A description of the reference photograph database that was used.
(5) A description of the FRT system that was used.
(6) The total number of searches performed.
(7) The total number of times FRT results were shared with another law enforcement agency, an outside agency, or a third party.
(8) Actions taken to comply with subdivision (c) of Section 13675.1 regarding unusable arrest photographs.
(b) By no later than January 31, 2025, and annually thereafter, each district attorney’s office, city prosecutor’s office, and the Attorney General shall report to the California State Auditor the following information regarding information obtained from FRT:
(1) The number of convictions that FRT results contributed to and the offenses for which the convictions were obtained, disaggregated by race, ethnicity, gender, and age.
(2) The number of motions to suppress made related to FRT results, and the number granted or denied.
(c) On or before July 1 of each year, the California State Auditor shall release to the public, post online, and transmit to the Legislature a full and complete report concerning the use of FRT by
law enforcement agencies and prosecutors, including any violations of this title that were identified.
(d) Any law enforcement agency using FRT shall keep and maintain those activity logs or other records necessary to comply with this section.
13675.4.
(a) (1) A law enforcement agency shall not operate an FRT system that has not been evaluated under the National Institute of Standards and Technology Face Recognition Vendor Testing Program and achieved an accuracy score of 98 percent true positives within two or more datasets relevant to investigative applications on a program report.(2) A peace officer shall not use FRT in any manner that reduces the facial recognition program’s competency score below 98 percent.
(b) (1) By July 1, 2024, the Department of Technology, in consultation
with the Chief of the Office of Information Security, shall issue standards to ensure the confidentiality and cybersecurity of FRT data and results.
(b)
(2) A law enforcement agency that uses FRT shall have a written policy that includes, adheres to the standards in paragraph (1). The policy shall include, without limitation, all of the following:
(1)
(A) A requirement that FRT use be limited to specifically authorized personnel who have received certified training in the use of FRT by the Commission on Peace Officer Standards and Training.
(2)
(B) A requirement that a manager authorized to use FRT be assigned to oversee the FRT program.
(3)
(C) A policy that describes the parameters of acceptable inputs to be used as probe images and that prohibits the use of sketches or other manually produced images.
(4)
(D) An acceptable use policy that includes specific allowances and restrictions on use.
(3) This subdivision does not prevent a law enforcement agency from
adopting a written policy that provides for standards stronger than those issued by the department.
(c) By no later than July 1, 2024, each law enforcement agency using FRT shall post the written policy required by subdivision (b) on its internet website.
(d) No law enforcement agency or peace officer shall request or enter into an agreement with another law enforcement agency or other third party to perform FRT searches on behalf of the requesting officer or agency if the program operated by the other agency or party does not meet the requirements of this section.
(e) (1) If the California State Auditor, pursuant to Section 13675.3, identifies any violations of this title by a law
enforcement agency, that law enforcement agency shall cease using FRT until all violations have been corrected.
(2) If the use of FRT is suspended pursuant to this subdivision, the law enforcement agency shall notify the public of the suspension.
13675.5.
(a) A law enforcement agency that uses FRT to attempt to identify an individual who is arrested shall provide to the individual both of the following:(1) A notice of the name of the law enforcement agency that operated the FRT system used, and the name of the database, if any, that was used to identify the individual.
(2) A copy of the accuracy or bias report required by subdivision (a) of Section 13675.4, each probe image that was used by the agency, any modifications made to the probe image, the candidate list, in rank order, produced by the facial recognition system, and any other documentation related
to the use of FRT in the law investigation.
(b) The information required under subdivision (a) shall be provided to the person in an appropriate language for the person if they are not fluent or literate in English.
(c) As used in this section “candidate list” means the top images that a facial recognition system determines to most closely match a probe image.
13675.6.
(a) If a court or law enforcement agency determines that a peace officer has violated any provision of this title, and the court or agency finds that the circumstances surrounding the violation raise serious questions about whether or not the officer acted intentionally with respect to the violation, the agency shall promptly initiate a proceeding to determine whether disciplinary action against the officer is warranted.(b) Notwithstanding any other law, a violation of this title is not punishable as a crime.
(c) A person who is subject to identification or attempted identification through FRT in
violation of this title may bring a civil action against the peace officer or law enforcement agency responsible for the violation.
(d) A person who is the subject of disparate treatment or adverse impact on the basis of race, ethnicity, gender, or age, whether individually or as a member of a class of individuals, due to use of FRT or any technological element, criteria, method, or design feature thereof, by a law enforcement agency, may bring a cause of action against the peace officer, law enforcement agency, or maker of the facial recognition or face surveillance technology responsible for the violation.
(e) The following relief may be recovered or obtained in an action under subdivision (c) or (d):
(1) Any
actual damages sustained by that person as a result of the violation.
(2) The greater of either of the following:
(A) Statutory damages of fifty thousand dollars ($50,000) per violation.
(B) Profits earned as a result of each violation.
(3) Exemplary damages pursuant to Section 3294 of the Civil Code.
(4) Injunctive, equitable, or declaratory relief as may be appropriate, including preliminary injunctive relief.
(5) Costs of the action, together with reasonable attorney’s fees.
(f) A civil action under subdivision (b) or (c) may not be commenced later than two years after the date upon which the claimant discovered or first had a reasonable opportunity to discover the violation.
