Massachusetts 2023-2024 Regular Session

Massachusetts Senate Bill S927 Compare Versions

Only one version of the bill is available at this time.

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2	2	SENATE DOCKET, NO. 750 FILED ON: 1/18/2023
3	3	SENATE . . . . . . . . . . . . . . No. 927
4	4	The Commonwealth of Massachusetts
5	5	_________________
6	6	PRESENTED BY:
7	7	Cynthia Stone Creem
8	8	_________________
9	9	To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
10	10	Court assembled:
11	11	The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:
12	12	An Act to implement the recommendations of the special commission on facial recognition
13	13	technology.
14	14	_______________
15	15	PETITION OF:
16	16	NAME:DISTRICT/ADDRESS :Cynthia Stone CreemNorfolk and MiddlesexJoanne M. ComerfordHampshire, Franklin and Worcester1/31/2023Michael J. BarrettThird Middlesex2/7/2023Rebecca L. RauschNorfolk, Worcester and Middlesex2/7/2023Jacob R. OliveiraHampden, Hampshire and Worcester1/31/2023Lydia EdwardsThird Suffolk2/9/2023Liz MirandaSecond Suffolk2/9/2023Adam GomezHampden2/27/2023Jason M. LewisFifth Middlesex2/9/2023Patrick M. O'ConnorFirst Plymouth and Norfolk2/7/2023Paul W. MarkBerkshire, Hampden, Franklin and
17	17	Hampshire
18	18	2/14/2023Sal N. DiDomenicoMiddlesex and Suffolk3/9/2023Patricia D. JehlenSecond Middlesex3/6/2023Jack Patrick Lewis7th Middlesex1/31/2023Vanna Howard17th Middlesex1/31/2023Susannah M. Whipps2nd Franklin2/2/2023 2 of 2
19	19	Thomas M. Stanley9th Middlesex2/3/2023 1 of 7
20	20	SENATE DOCKET, NO. 750 FILED ON: 1/18/2023
21	21	SENATE . . . . . . . . . . . . . . No. 927
22	22	By Ms. Creem, a petition (accompanied by bill, Senate, No. 927) of Cynthia Stone Creem,
23	23	Joanne M. Comerford, Michael J. Barrett, Rebecca L. Rausch and other members of the Senate
24	24	for legislation to implement the recommendations of the special commission on facial
25	25	recognition technology. The Judiciary.
26	26	The Commonwealth of Massachusetts
27	27	_______________
28	28	In the One Hundred and Ninety-Third General Court
29	29	(2023-2024)
30	30	_______________
31	31	An Act to implement the recommendations of the special commission on facial recognition
32	32	technology.
33	33	Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
34	34	of the same, as follows:
35	35	1 SECTION 1. Chapter 6 of the General Laws, as appearing in the 2020 Official Edition, as
36	36	2amended by chapter 253 of the acts of 2020, is hereby amended by striking section 220 and
37	37	3inserting in place thereof the following section: -
38	38	4 Section 220. (a) As used in this section, the following words shall, unless the context
39	39	5clearly requires otherwise, have the following meanings:
40	40	6 “Biometric surveillance technology”, any computer software that performs facial
41	41	7recognition or other remote biometric recognition.
42	42	8 “Facial recognition”, an automated or semi-automated process that assists in identifying
43	43	9or verifying an individual or analyzing or capturing information about an individual based on the
44	44	10physical characteristics of an individual’s face, head or body, or that uses characteristics of an 2 of 7
45	45	11individual’s face, head or body to derive information about the associations, activities or location
46	46	12of an individual; provided, however, that “facial recognition” shall not include the use of search
47	47	13terms to sort images in a database.
48	48	14 “Facial recognition search”, the use of facial recognition to analyze an image.
49	49	15 “Law enforcement agency”, as defined in section 1 of chapter 6E.
50	50	16 “Law enforcement officer” or “officer”, as defined in section 1 of chapter 6E.
51	51	17 “Other remote biometric recognition”, an automated or semi-automated process that
52	52	18assists in identifying or verifying an individual or analyzing or capturing information about an
53	53	19individual based on an individual’s gait, voice or other biometric characteristic or that uses such
54	54	20characteristics to derive information about the associations, activities or location of an
55	55	21individual; provided, however, that “other remote biometric recognition” shall not include the
56	56	22identification or verification of an individual using deoxyribonucleic acid, fingerprints, palm
57	57	23prints or other information derived from physical contact.
58	58	24 “Public agency”, any: (i) agency, executive office, department, board, commission,
59	59	25bureau, division or authority of the commonwealth; (ii) political subdivision thereof; or (iii)
60	60	26authority established by the general court to serve a public purpose.
61	61	27 “Public official”, any officer, employee, agent, contractor or subcontractor of any public
62	62	28agency.
63	63	29 (b) Absent express authorization in a general or special law to the contrary, it shall be
64	64	30unlawful for a law enforcement agency or officer to acquire, possess, access, use, assist with the
65	65	31use of or provide resources for the development or use of any biometric surveillance technology, 3 of 7
66	66	32or to enter into a contract with or make a request to a third party, including any federal agency,
67	67	33for the purpose of acquiring, possessing, accessing or using information derived from a biometric
68	68	34surveillance technology.
69	69	35 Except in a judicial proceeding alleging a violation of this section, no information
70	70	36obtained in violation of this section shall be admissible in any criminal, civil, administrative or
71	71	37other proceeding.
72	72	38 (c) The registrar of motor vehicles may acquire, possess, or use facial recognition
73	73	39technology to verify an individual’s identity when issuing licenses, permits or other documents
74	74	40pursuant to chapter 90; provided, however, that the registrar shall not allow any other entity to
75	75	41access or otherwise use its facial recognition technology except in accordance with subsection
76	76	42(d).
77	77	43 (d) The department of state police may perform a facial recognition search, or request the
78	78	44federal bureau of investigation to perform such a search, for the following purposes:
79	79	45 (1) to execute a warrant duly authorized by a judge based on probable cause that an
80	80	46unidentified or unconfirmed individual in an image has committed a felony;
81	81	47 (2) upon reasonable belief that an emergency involving immediate danger of death or
82	82	48serious physical injury to any individual or group of people requires the performance of a facial
83	83	49recognition search without delay;
84	84	50 (3) to identify a deceased person; or 4 of 7
85	85	51 (4) on behalf of another law enforcement agency or a federal agency, provided that such
86	86	52agency obtained a warrant pursuant to clause (1) or documented in writing the reason for a
87	87	53search requested under clauses (2) or (3).
88	88	54 One facial recognition operations group within the department shall be charged with
89	89	55receiving and evaluating law enforcement requests for facial recognition searches, performing
90	90	56facial recognition searches, reporting results, and recording relevant data. The department shall
91	91	57only use existing facial recognition technology used by the registrar of motor vehicles or federal
92	92	58bureau of investigations or facial recognition technology approved by the executive office of
93	93	59technology services and security, which may only be approved following a public hearing on the
94	94	60proposed software.
95	95	61 Any search performed or search request made to the federal bureau of investigation under
96	96	62this section shall be documented in writing.
97	97	63 (e) For any emergency facial recognition search performed or requested under subsection
98	98	64(d)(2), the law enforcement agency shall immediately document the factual basis for its belief
99	99	65that an emergency requires the performance of such a search without delay, and any emergency
100	100	66facial recognition search shall be narrowly tailored to address the emergency. Not later than 48
101	101	67hours after the law enforcement agency obtains access to the results of a facial recognition
102	102	68search, the agency shall file with the superior court in the relevant jurisdiction a signed, sworn
103	103	69statement made by a supervisory official of a rank designated by the head of the agency setting
104	104	70forth the grounds for the emergency search.
105	105	71 (f) All individuals charged with a crime who were identified using a facial recognition
106	106	72search under this subsection shall be provided notice that they were subject to such search, 5 of 7
107	107	73pursuant to rule 14 of the rules of criminal procedure. Law enforcement agencies and district
108	108	74attorneys must make readily available to defendants and their attorneys in criminal prosecutions
109	109	75all records and information pertaining to any facial recognition searches performed or requested
110	110	76during the course of the investigation of the crime or offense that is the object of the criminal
111	111	77prosecution. This information shall include, but not be limited to, the results of the facial
112	112	78recognition search (including other possible matches identified by the search), as well as records
113	113	79regarding the particular program or algorithm used to conduct the facial recognition search, the
114	114	80accuracy rate of the facial recognition system, any audit testing of the facial recognition system,
115	115	81the identity of the individual or individuals who conducted the facial recognition search, training
116	116	82provided to law enforcement officials involved in conducting facial recognition searches, and the
117	117	83process by which the defendant was selected as the most likely match.
118	118	84 (g) The department shall document, as a public record, each facial recognition search
119	119	85request and each facial recognition search performed pursuant to this section and report this
120	120	86information quarterly to the executive office of public safety and security. Reported information
121	121	87shall include: the date and time of the search or request; the system used for the search; the
122	122	88specific criminal offense or offenses under investigation; the number of matched individuals
123	123	89returned, if any; the name and position of the requesting individual and employing law
124	124	90enforcement agency; a copy of the warrant or, if no warrant exists, a copy of the written
125	125	91emergency request; and data detailing the individual characteristics included in the facial
126	126	92recognition search or request, including the presumed race and gender of the person in the probe
127	127	93image(s), as assessed by the officer conducting the search.
128	128	94 (h) Annually, not later than March 31, the executive office of public safety and security
129	129	95shall publish on its website the following data for the previous calendar year: (i) the total number 6 of 7
130	130	96of facial recognition searches performed by the department of state police, disaggregated by law
131	131	97enforcement agency or federal agency on whose behalf the search was performed; (ii) the total
132	132	98number of facial recognition searches performed by the federal bureau of investigation on behalf
133	133	99of law enforcement agencies, disaggregated by law enforcement agency on whose behalf the
134	134	100search was performed. For each category of data and each law enforcement agency, the
135	135	101published information shall include: the number of searches performed pursuant to a warrant, by
136	136	102alleged offense; the number of searches performed pursuant to an emergency; and the race and
137	137	103gender of the subjects of the searches, as assessed by the officer conducting the search.
138	138	104 (i) Each non-law enforcement public agency shall document, as a public record, each
139	139	105facial recognition search requested and each facial recognition search performed by its public
140	140	106officials and report this information quarterly to the executive office of public safety and
141	141	107security. Reported information shall include: the date and time of the search or request; the name
142	142	108and position of the requesting individual; the reason for the search or request; the name, position,
143	143	109and employer of the individual who conducted the search; the system used for the search; the
144	144	110number of matched individuals returned, if any; and data detailing the individual characteristics
145	145	111included in the facial recognition search or request, including the presumed race and gender of
146	146	112the person in the probe image(s), as assessed by the individual conducting the search.
147	147	113 (j) Annually, not later than March 31, the executive office of public safety and security
148	148	114shall publish on its website the following data for the previous calendar year: (i) the total number
149	149	115of facial recognition searches performed by or at the request of non-law enforcement public
150	150	116agencies, disaggregated by the public agency on whose behalf the search was performed. For
151	151	117each public agency, the published information shall include the race and gender of the subjects of
152	152	118the searches, as assessed by the individual conducting the search. 7 of 7
153	153	119 (k) Notwithstanding subsection (b), it shall be unlawful for a law enforcement agency of
154	154	120officer to use a biometric surveillance system to infer a person’s emotions or affect. It shall also
155	155	121be unlawful for a law enforcement agency or officer to use a biometric surveillance system to
156	156	122analyze moving images or video data, whether in real time or as applied to archived information;
157	157	123provided, however, that facial recognition may be used on a still image taken from moving
158	158	124images or video data if authorized pursuant to subsection (d).
159	159	125 (l) Notwithstanding subsection (b), a law enforcement agency or officer may: (i) acquire
160	160	126and possess personal electronic devices, such as a cell phone or tablet, that utilize facial
161	161	127recognition technology for the sole purpose of user authentication; (ii) acquire, possess and use
162	162	128automated video or image redaction software; provided, that such software does not have the
163	163	129capability of performing facial recognition or other remote biometric recognition; and (iii)
164	164	130receive evidence related to the investigation of a crime derived from a biometric surveillance
165	165	131technology; provided, that the use of a biometric surveillance technology was not knowingly
166	166	132solicited by a law enforcement agency or officer in violation of subsection (b).