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HOUSE DOCKET, NO. 2304 FILED ON: 1/19/2023
HOUSE . . . . . . . . . . . . . . . No. 1728
The Commonwealth of Massachusetts
_________________
PRESENTED BY:
Orlando Ramos and David M. Rogers
_________________
To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:
The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:
An Act to implement the recommendations of the special commission on facial recognition
technology.
_______________
PETITION OF:
NAME:DISTRICT/ADDRESS :DATE ADDED:Orlando Ramos9th Hampden1/19/2023David M. Rogers24th Middlesex1/19/2023Steven Owens29th Middlesex2/2/2023David Paul Linsky5th Middlesex2/2/2023Lindsay N. Sabadosa1st Hampshire2/2/2023Tram T. Nguyen18th Essex2/2/2023Brian W. Murray10th Worcester2/2/2023Jack Patrick Lewis7th Middlesex2/2/2023Margaret R. Scarsdale1st Middlesex2/2/2023Sean Garballey23rd Middlesex2/2/2023James C. Arena-DeRosa8th Middlesex2/2/2023Joanne M. ComerfordHampshire, Franklin and Worcester2/2/2023David Henry Argosky LeBoeuf17th Worcester2/2/2023Vanna Howard17th Middlesex2/2/2023Erika Uyterhoeven27th Middlesex2/2/2023Patricia A. Duffy5th Hampden2/2/2023Susannah M. Whipps2nd Franklin2/2/2023 2 of 2
Thomas M. Stanley9th Middlesex2/13/2023Rebecca L. RauschNorfolk, Worcester and Middlesex2/13/2023Jon Santiago9th Suffolk2/13/2023Patrick M. O'ConnorFirst Plymouth and Norfolk2/13/2023Michelle M. DuBois10th Plymouth2/13/2023Tricia Farley-Bouvier2nd Berkshire2/13/2023Jason M. LewisFifth Middlesex2/13/2023Jay D. Livingstone8th Suffolk2/15/2023Denise C. Garlick13th Norfolk2/15/2023Carol A. Doherty3rd Bristol2/21/2023 1 of 7
HOUSE DOCKET, NO. 2304 FILED ON: 1/19/2023
HOUSE . . . . . . . . . . . . . . . No. 1728
By Representatives Ramos of Springfield and Rogers of Cambridge, a petition (accompanied by
bill, House, No. 1728) of Orlando Ramos, David M. Rogers and others for legislation to
implement the recommendations of the special commission on facial recognition technology.
The Judiciary.
The Commonwealth of Massachusetts
_______________
In the One Hundred and Ninety-Third General Court
(2023-2024)
_______________
An Act to implement the recommendations of the special commission on facial recognition
technology.
Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
of the same, as follows:
1 SECTION 1. Chapter 6 of the General Laws, as amended by chapter 253 of the acts of
22020, is hereby amended by striking section 220 and inserting in place thereof the following
3section: -
4 Section 220. (a) As used in this section, the following words shall, unless the context
5clearly requires otherwise, have the following meanings:
6 “Biometric surveillance technology”, any computer software that performs facial
7recognition or other remote biometric recognition.
8 “Facial recognition”, an automated or semi-automated process that assists in identifying
9or verifying an individual or analyzing or capturing information about an individual based on the
10physical characteristics of an individual’s face, head or body, or that uses characteristics of an 2 of 7
11individual’s face, head or body to derive information about the associations, activities or location
12of an individual; provided, however, that “facial recognition” shall not include the use of search
13terms to sort images in a database.
14 “Facial recognition search”, the use of facial recognition to analyze an image.
15 “Law enforcement agency”, as defined in section 1 of chapter 6E.
16 “Law enforcement officer” or “officer”, as defined in section 1 of chapter 6E.
17 “Other remote biometric recognition”, an automated or semi-automated process that
18assists in identifying or verifying an individual or analyzing or capturing information about an
19individual based on an individual’s gait, voice or other biometric characteristic or that uses such
20characteristics to derive information about the associations, activities or location of an
21individual; provided, however, that “other remote biometric recognition” shall not include the
22identification or verification of an individual using deoxyribonucleic acid, fingerprints, palm
23prints or other information derived from physical contact.
24 “Public agency”, any: (i) agency, executive office, department, board, commission,
25bureau, division or authority of the commonwealth; (ii) political subdivision thereof; or (iii)
26authority established by the general court to serve a public purpose.
27 “Public official”, any officer, employee, agent, contractor or subcontractor of any public
28agency.
29 (b) Absent express authorization in a general or special law to the contrary, it shall be
30unlawful for a law enforcement agency or officer to acquire, possess, access, use, assist with the
31use of or provide resources for the development or use of any biometric surveillance technology, 3 of 7
32or to enter into a contract with or make a request to a third party, including any federal agency,
33for the purpose of acquiring, possessing, accessing or using information derived from a biometric
34surveillance technology.
35 Except in a judicial proceeding alleging a violation of this section, no information
36obtained in violation of this section shall be admissible in any criminal, civil, administrative or
37other proceeding.
38 (c) The registrar of motor vehicles may acquire, possess, or use facial recognition
39technology to verify an individual’s identity when issuing licenses, permits or other documents
40pursuant to chapter 90; provided, however, that the registrar shall not allow any other entity to
41access or otherwise use its facial recognition technology except in accordance with subsection
42(d).
43 (d) The department of state police may perform a facial recognition search, or request the
44federal bureau of investigation to perform such a search, for the following purposes:
45 (1)to execute a warrant duly authorized by a judge based on probable cause that an
46unidentified or unconfirmed individual in an image has committed a felony;
47 (2)upon reasonable belief that an emergency involving immediate danger of death or
48serious physical injury to any individual or group of people requires the performance of a facial
49recognition search without delay;
50 (3)to identify a deceased person; or 4 of 7
51 (4)on behalf of another law enforcement agency or a federal agency, provided that such
52agency obtained a warrant pursuant to clause (1) or documented in writing the reason for a
53search requested under clauses (2) or (3).
54 One facial recognition operations group within the department shall be charged with
55receiving and evaluating law enforcement requests for facial recognition searches, performing
56facial recognition searches, reporting results, and recording relevant data. The department shall
57only use existing facial recognition technology used by the registrar of motor vehicles or federal
58bureau of investigations or facial recognition technology approved by the executive office of
59technology services and security, which may only be approved following a public hearing on the
60proposed software.
61 Any search performed or search request made to the federal bureau of investigation under
62this section shall be documented in writing.
63 (e) For any emergency facial recognition search performed or requested under subsection
64(d)(2), the law enforcement agency shall immediately document the factual basis for its belief
65that an emergency requires the performance of such a search without delay, and any emergency
66facial recognition search shall be narrowly tailored to address the emergency. Not later than 48
67hours after the law enforcement agency obtains access to the results of a facial recognition
68search, the agency shall file with the superior court in the relevant jurisdiction a signed, sworn
69statement made by a supervisory official of a rank designated by the head of the agency setting
70forth the grounds for the emergency search.
71 (f) All individuals charged with a crime who were identified using a facial recognition
72search under this subsection shall be provided notice that they were subject to such search, 5 of 7
73pursuant to rule 14 of the rules of criminal procedure. Law enforcement agencies and district
74attorneys must make readily available to defendants and their attorneys in criminal prosecutions
75all records and information pertaining to any facial recognition searches performed or requested
76during the course of the investigation of the crime or offense that is the object of the criminal
77prosecution. This information shall include, but not be limited to, the results of the facial
78recognition search (including other possible matches identified by the search), as well as records
79regarding the particular program or algorithm used to conduct the facial recognition search, the
80accuracy rate of the facial recognition system, any audit testing of the facial recognition system,
81the identity of the individual or individuals who conducted the facial recognition search, training
82provided to law enforcement officials involved in conducting facial recognition searches, and the
83process by which the defendant was selected as the most likely match.
84 (g) The department shall document, as a public record, each facial recognition search
85request and each facial recognition search performed pursuant to this section and report this
86information quarterly to the executive office of public safety and security. Reported information
87shall include: the date and time of the search or request; the system used for the search; the
88specific criminal offense or offenses under investigation; the number of matched individuals
89returned, if any; the name and position of the requesting individual and employing law
90enforcement agency; a copy of the warrant or, if no warrant exists, a copy of the written
91emergency request; and data detailing the individual characteristics included in the facial
92recognition search or request, including the presumed race and gender of the person in the probe
93image(s), as assessed by the officer conducting the search.
94 (h) Annually, not later than March 31, the executive office of public safety and security
95shall publish on its website the following data for the previous calendar year: (i) the total number 6 of 7
96of facial recognition searches performed by the department of state police, disaggregated by law
97enforcement agency or federal agency on whose behalf the search was performed; (ii) the total
98number of facial recognition searches performed by the federal bureau of investigation on behalf
99of law enforcement agencies, disaggregated by law enforcement agency on whose behalf the
100search was performed. For each category of data and each law enforcement agency, the
101published information shall include: the number of searches performed pursuant to a warrant, by
102alleged offense; the number of searches performed pursuant to an emergency; and the race and
103gender of the subjects of the searches, as assessed by the officer conducting the search.
104 (i) Each non-law enforcement public agency shall document, as a public record, each
105facial recognition search requested and each facial recognition search performed by its public
106officials and report this information quarterly to the executive office of public safety and
107security. Reported information shall include: the date and time of the search or request; the name
108and position of the requesting individual; the reason for the search or request; the name, position,
109and employer of the individual who conducted the search; the system used for the search; the
110number of matched individuals returned, if any; and data detailing the individual characteristics
111included in the facial recognition search or request, including the presumed race and gender of
112the person in the probe image(s), as assessed by the individual conducting the search.
113 (j) Annually, not later than March 31, the executive office of public safety and security
114shall publish on its website the following data for the previous calendar year: (i) the total number
115of facial recognition searches performed by or at the request of non-law enforcement public
116agencies, disaggregated by the public agency on whose behalf the search was performed. For
117each public agency, the published information shall include the race and gender of the subjects of
118the searches, as assessed by the individual conducting the search. 7 of 7
119 (k) Notwithstanding subsection (b), it shall be unlawful for a law enforcement agency of
120officer to use a biometric surveillance system to infer a person’s emotions or affect. It shall also
121be unlawful for a law enforcement agency or officer to use a biometric surveillance system to
122analyze moving images or video data, whether in real time or as applied to archived information;
123provided, however, that facial recognition may be used on a still image taken from moving
124images or video data if authorized pursuant to subsection (d).
125 (l) Notwithstanding subsection (b), a law enforcement agency or officer may: (i) acquire
126and possess personal electronic devices, such as a cell phone or tablet, that utilize facial
127recognition technology for the sole purpose of user authentication; (ii) acquire, possess and use
128automated video or image redaction software; provided, that such software does not have the
129capability of performing facial recognition or other remote biometric recognition; and (iii)
130receive evidence related to the investigation of a crime derived from a biometric surveillance
131technology; provided, that the use of a biometric surveillance technology was not knowingly
132solicited by a law enforcement agency or officer in violation of subsection (b).