Amended IN Assembly April 04, 2023 Amended IN Assembly March 02, 2023 CALIFORNIA LEGISLATURE 20232024 REGULAR SESSION Assembly Bill No. 642Introduced by Assembly Member Ting(Principal coauthor: Senator Bradford)(Coauthor: Coauthors: Assembly Member McCarty) Members Jackson, Lee, and McCarty)February 09, 2023An act to add Section 13680 to Title 4.8 (commencing with Section 13675) to Part 4 of the Penal Code, relating to law enforcement agency regulation.LEGISLATIVE COUNSEL'S DIGESTAB 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.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 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 attorneys office, city prosecutors 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: NOYES Bill TextThe 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 Officers13675. 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 drivers 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 persons 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 peace officer using or requesting the use of FRT shall not do any of the following:(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.(2) As used in this subdivision, 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 attorneys office, city prosecutors 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 programs competency score below 98 percent.(b) A law enforcement agency that uses FRT shall have a written policy that includes, without limitation, all of the following:(1) 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) A requirement that a manager authorized to use FRT be assigned to oversee the FRT program.(3) 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) An acceptable use policy that includes specific allowances and restrictions on use.(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 attorneys fees.(f) A good faith reliance on a statutory authorization, or a good faith determination that the conduct complained of is permitted under this title, is a complete defense against any civil action brought under subdivision (c) or (d).(g) 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.SEC. 2. If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.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.
Amended IN Assembly April 04, 2023 Amended IN Assembly March 02, 2023 CALIFORNIA LEGISLATURE 20232024 REGULAR SESSION Assembly Bill No. 642Introduced by Assembly Member Ting(Principal coauthor: Senator Bradford)(Coauthor: Coauthors: Assembly Member McCarty) Members Jackson, Lee, and McCarty)February 09, 2023An act to add Section 13680 to Title 4.8 (commencing with Section 13675) to Part 4 of the Penal Code, relating to law enforcement agency regulation.LEGISLATIVE COUNSEL'S DIGESTAB 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.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 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 attorneys office, city prosecutors 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: NOYES
Amended IN Assembly April 04, 2023 Amended IN Assembly March 02, 2023
Amended IN Assembly April 04, 2023
Amended IN Assembly March 02, 2023
CALIFORNIA LEGISLATURE 20232024 REGULAR SESSION
Assembly Bill
No. 642
Introduced by Assembly Member Ting(Principal coauthor: Senator Bradford)(Coauthor: Coauthors: Assembly Member McCarty) Members Jackson, Lee, and McCarty)February 09, 2023
Introduced by Assembly Member Ting(Principal coauthor: Senator Bradford)(Coauthor: Coauthors: Assembly Member McCarty) Members Jackson, Lee, and McCarty)
February 09, 2023
An act to add Section 13680 to Title 4.8 (commencing with Section 13675) to Part 4 of the Penal Code, relating to law enforcement agency regulation.
LEGISLATIVE COUNSEL'S DIGEST
## 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.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 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 attorneys office, city prosecutors 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.
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.
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 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 attorneys office, city prosecutors 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
## Bill 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 Officers13675. 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 drivers 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 persons 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 peace officer using or requesting the use of FRT shall not do any of the following:(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.(2) As used in this subdivision, 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 attorneys office, city prosecutors 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 programs competency score below 98 percent.(b) A law enforcement agency that uses FRT shall have a written policy that includes, without limitation, all of the following:(1) 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) A requirement that a manager authorized to use FRT be assigned to oversee the FRT program.(3) 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) An acceptable use policy that includes specific allowances and restrictions on use.(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 attorneys fees.(f) A good faith reliance on a statutory authorization, or a good faith determination that the conduct complained of is permitted under this title, is a complete defense against any civil action brought under subdivision (c) or (d).(g) 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.SEC. 2. If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.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.
The people of the State of California do enact as follows:
## 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 Officers13675. 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 drivers 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 persons 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 peace officer using or requesting the use of FRT shall not do any of the following:(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.(2) As used in this subdivision, 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 attorneys office, city prosecutors 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 programs competency score below 98 percent.(b) A law enforcement agency that uses FRT shall have a written policy that includes, without limitation, all of the following:(1) 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) A requirement that a manager authorized to use FRT be assigned to oversee the FRT program.(3) 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) An acceptable use policy that includes specific allowances and restrictions on use.(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 attorneys fees.(f) A good faith reliance on a statutory authorization, or a good faith determination that the conduct complained of is permitted under this title, is a complete defense against any civil action brought under subdivision (c) or (d).(g) 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.
SECTION 1. Title 4.8 (commencing with Section 13675) is added to Part 4 of the Penal Code, to read:
### SECTION 1.
TITLE 4.8. Use of Facial Recognition Technology by Law Enforcement Agencies and Officers13675. 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 drivers 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 persons 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 peace officer using or requesting the use of FRT shall not do any of the following:(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.(2) As used in this subdivision, 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 attorneys office, city prosecutors 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 programs competency score below 98 percent.(b) A law enforcement agency that uses FRT shall have a written policy that includes, without limitation, all of the following:(1) 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) A requirement that a manager authorized to use FRT be assigned to oversee the FRT program.(3) 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) An acceptable use policy that includes specific allowances and restrictions on use.(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 attorneys fees.(f) A good faith reliance on a statutory authorization, or a good faith determination that the conduct complained of is permitted under this title, is a complete defense against any civil action brought under subdivision (c) or (d).(g) 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.
TITLE 4.8. Use of Facial Recognition Technology by Law Enforcement Agencies and Officers13675. 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 drivers 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 persons 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 peace officer using or requesting the use of FRT shall not do any of the following:(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.(2) As used in this subdivision, 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 attorneys office, city prosecutors 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 programs competency score below 98 percent.(b) A law enforcement agency that uses FRT shall have a written policy that includes, without limitation, all of the following:(1) 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) A requirement that a manager authorized to use FRT be assigned to oversee the FRT program.(3) 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) An acceptable use policy that includes specific allowances and restrictions on use.(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 attorneys fees.(f) A good faith reliance on a statutory authorization, or a good faith determination that the conduct complained of is permitted under this title, is a complete defense against any civil action brought under subdivision (c) or (d).(g) 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.
TITLE 4.8. Use of Facial Recognition Technology by Law Enforcement Agencies and Officers
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 drivers 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. 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 drivers 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 persons 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.
13675.1. (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 persons 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 peace officer using or requesting the use of FRT shall not do any of the following:(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.(2) As used in this subdivision, 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.
13675.2. A peace officer using or requesting the use of FRT shall not do any of the following:
(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.
(2) As used in this subdivision, 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 attorneys office, city prosecutors 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.
13675.3. (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 attorneys office, city prosecutors 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 programs competency score below 98 percent.(b) A law enforcement agency that uses FRT shall have a written policy that includes, without limitation, all of the following:(1) 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) A requirement that a manager authorized to use FRT be assigned to oversee the FRT program.(3) 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) An acceptable use policy that includes specific allowances and restrictions on use.(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.
13675.4. (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 programs competency score below 98 percent.
(b) A law enforcement agency that uses FRT shall have a written policy that includes, without limitation, all of the following:
(1) 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) A requirement that a manager authorized to use FRT be assigned to oversee the FRT program.
(3) 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) An acceptable use policy that includes specific allowances and restrictions on use.
(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.
13675.5. (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 attorneys fees.(f) A good faith reliance on a statutory authorization, or a good faith determination that the conduct complained of is permitted under this title, is a complete defense against any civil action brought under subdivision (c) or (d).(g) 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.
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 attorneys fees.
(f) A good faith reliance on a statutory authorization, or a good faith determination that the conduct complained of is permitted under this title, is a complete defense against any civil action brought under subdivision (c) or (d).
(g) 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.
SEC. 2. If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.
SEC. 2. If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.
SEC. 2. If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.
### SEC. 2.
(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.