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THREE YEAR BAN IN CALIFORNIA ON USE OF FACIAL RECOGNITION TECHNOLOGY BY LAW ENFORCEMENT

19 octobre 2019
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On October 10, 2019, The Next Web announced that California lawmakers passed a bill placing a three-year state-wide moratorium on the use of facial recognition technology by law enforcement agencies. AB-1215, introduced by Assemblyman Phil Ting, was signed by Governor Gavin Newsom on October 8, 2019 and will come into effect on January 1, 2020.

AB-1215

AB 1215: Act to add and repeal Section 832.19 of the Penal Code, relating to law enforcement, adds a provision to the California Penal Code that shall remain in effect until January 1, 2023, which prohibits law enforcement agencies from installing, activating, or using any biometric surveillance system in connection with an officer camera or data collected by an officer camera. Furthermore, this provision establishes a private right of action for individuals to seek equitable or declaratory relief against a law enforcement agency or law enforcement officer that violates the provision.

“832.19. (a) For the purposes of this section, the following terms have the following meanings:

(1) “Biometric data” means a physiological, biological, or behavioral characteristic that can be used, singly or in combination with each other or with other information, to establish individual identity.

(2) “Biometric surveillance system” means any computer software or application that performs facial recognition or other biometric surveillance.

(3) “Facial recognition or other biometric surveillance” means either of the following, alone or in combination:

(A) An automated or semiautomated process that captures or analyzes biometric data of an individual to identify or assist in identifying an individual.

(B) An automated or semiautomated process that generates, or assists in generating, surveillance information about an individual based on biometric data.

(4) “Facial recognition or other biometric surveillance” does not include the use of an automated or semiautomated process for the purpose of redacting a recording for release or disclosure outside the law enforcement agency to protect the privacy of a subject depicted in the recording, if the process does not generate or result in the retention of any biometric data or surveillance information.

(5) “Law enforcement agency” means any police department, sheriff’s department, district attorney, county probation department, transit agency police department, school district police department, highway patrol, the police department of any campus of the University of California, the California State University, or a community college, the Department of the California Highway Patrol, and the Department of Justice.

(6) “Law enforcement officer” means an officer, deputy, employee, or agent of a law enforcement agency.

(7) “Officer camera” means a body-worn camera or similar device that records or transmits images or sound and is attached to the body or clothing of, or carried by, a law enforcement officer.

(8) “Surveillance information” means either of the following, alone or in combination:

(A) Any information about a known or unknown individual, including, but not limited to, a person’s name, date of birth, gender, or criminal background.

(B) Any information derived from biometric data, including, but not limited to, assessments about an individual’s sentiment, state of mind, or level of dangerousness.

(9) “Use” means either of the following, alone or in combination:

(A) The direct use of a biometric surveillance system by a law enforcement officer or law enforcement agency.

(B) A request or agreement by a law enforcement officer or law enforcement agency that another law enforcement agency or other third party use a biometric surveillance system on behalf of the requesting officer or agency.

(b) A law enforcement agency or law enforcement officer shall not install, activate, or use any biometric surveillance system in connection with an officer camera or data collected by an officer camera.

(c) In addition to any other sanctions, penalties, or remedies provided by law, a person may bring an action for equitable or declaratory relief in a court of competent jurisdiction against a law enforcement agency or law enforcement officer that violates this section.

(d) This section does not preclude a law enforcement agency or law enforcement officer from using a mobile fingerprint scanning device during a lawful detention to identify a person who does not have proof of identification if this use is lawful and does not generate or result in the retention of any biometric data or surveillance information.

(e) This section shall remain in effect only until January 1, 2023, and as of that date is repealed.”

The Right to Privacy

In enacting the AB-1215, the Legislature put a heavy emphasis on the constitutional right to privacy. Section 1 of AB-1215 lists several findings and declarations from the Legislature regarding the use of biometric surveillance tools linked to officers’ body cameras including:     

“(c) The use of facial recognition and other biometric surveillance is the functional equivalent of requiring every person to show a personal photo identification card at all times in violation of recognized constitutional rights. This technology also allows people to be tracked without consent. It would also generate massive databases about law-abiding Californians, and may chill the exercise of free speech in public places.”

“(e) Facial and other biometric surveillance would corrupt the core purpose of officer-worn body-worn cameras by transforming those devices from transparency and accountability tools into roving surveillance systems.”

As commented by the American Civil Liberties Union of California during the Senate floor analysis of AB-1215 dated September 9, 2019:

“By preventing the use of such technology with officer body cameras, AB 1215 (Ting) codifies the U.S. Supreme Court’s recognition that, absent valid and clear legal reasons, Californians may not be required to identify themselves to government officials.”

Indeed, in Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004), the US Supreme Court concluded that circumstances in which officers may compel identification must fall within the scope of reasonable suspicion of criminal activity.

Balancing Privacy and Public Security

During the Senate floor analysis of AB-1215 dated September 9, 2019, the Riverside Sheriff’s Association lobbied in favor of “access to the best available security – including the use of body cameras and facial recognition technology” and suggested oversight and regulation of the biometrics surveillance technology rather than prohibiting its use.

“Proponents have not identified a compelling reason to prohibit the use of this software with the body cameras. They have inadvertently however, raised legitimate questions of the need for oversight and regulation of this developing technology.

If AB 1215 instead sought to establish minimum standards and policies related to the use of facial recognition in conjunction with body camera video, we could then discuss the issues of privacy and legitimate law enforcement usage, working together towards a compromise that would protect privacy and the public.”

Actions should indeed be taken to achieve a proper balance between privacy and taking advantage of technology advancements to achieve the best available security. Legislature could use this three-year moratorium period to establish minimum standards and policies not only related to permitted use of facial recognition, but also, and most importantly, related to the protection of the data collected as a result of the use of such technology. As commented by Paul Hastings:

“biometrics cannot be changed like a credit card number or login credentials. A fingerprint or facial template is effectively unalterable and becomes a unique signature for a person’s authenticated identity. As a result of the privacy risks inherent in unalterable, unique signatures, regulators are looking closely at facial recognition practices and are requiring robust privacy assessments or enhanced consent to authorize their use.”

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