This type of regulation is targeted at FRT (the software / algorithm that identifies an individual by their face) and places conditions on (or barriers to) its use.
Complete Bans on FRT Use
Some jurisdictions have already made the determination that FRT simply should not be used, specifically implementing a complete prohibition on its use by state actors. Three cities – San Francisco, Oakland, and Somerville (Mass.) – have recently passed ordinances banning the use of FRT by city officials, including law enforcement. Two other cities – Berkeley (Cali.) and Cambridge (Mass.) – are actively deliberating such a ban. Minneapolis may soon follow suit, as one City Councilor has recently stated he is "considering" a similar ban. At the state level, one Michigan bill (SB 342, Sens. Lucido (R) and Chang (D)) proposes to ban law enforcement use of FRT or information obtained from FRT use, while proposed legislation at the federal level (HR 3875, Rep. Tlaib (D)) would prohibit the use of federal funds to purchase or use FRT.
Partial Bans on FRT
Short of a complete ban, various jurisdictions are considering or have enacted prohibitions on the use of FRT in certain locations or on specific classes of individuals. At the federal level, the No Biometric Barriers to Housing Act (HR4008; Rep. Clarke (D) and others) would prohibit the use of biometric recognition technology, including FRT, in certain federally-assisted dwelling units. Two New York bills (A06788, Asm. Rosenthal (D) et al.; S05125, Sens. Montgomery (D) and Krueger (D)) propose something similar, prohibiting certain rental dwellings from requiring residents to use a smart access system. Contemporaneous New York bills would expressly prohibit FRT use by landlords on any residential premises (S05687, Sens. Hoylman (D) and Montgomery (D); A07790, Asm. Walker (D)).
A proposed Pennsylvania law (SB797, Sen. Phillips-Hill (R) and others) would prohibit an educational entity or third party from collecting biometrics on a student except as required by law. Another New York bill (A08373, Asm. Walker (D)) would prohibit the use of FRT on school premises.
A recent Connecticut bill (HB5333, Rep. Zawistowski (R)) would have prohibited retailers from using facial recognition software for marketing purposes.
Moratoria on FRT Use
Legislators in Michigan, Massachusetts, and Washington have recently proposed placing a moratorium – a temporary ban for a set period of time – on state use of FRT. Two Massachusetts bills (S.1385, Sen. Creem (D); H.1538, Rep. Rogers (D)) would prohibit state use of any biometric surveillance system, including FRT, absent express statutory authorization which much satisfy certain enumerated criteria. A Michigan bill (HB 4810, Rep. Robinson (D)) would place a five-year moratorium on police use of FRT to enforce state and local laws. As introduced, two Washington bills (SB 5528, Sens. Hasegawa (D), Saldaña (D), Nguyen (D); HB1654, Reps. Ryu (D) and others) would place a moratorium on the use of FRT by state and local officials pending a report from the Attorney General, receipt of a task force report on the potential consequences of FRT use by governmental actors, and legislation on the basis of these reports setting restrictions on FRT use by government agencies.
It appears that Montreal became the first Canadian city to consider targeted action to constrain FRT when its City Council considered a motion in August 2019 to impose a moratorium on its use by police and other municipal services so "reasonable rules can be put in place." Following the disclosure of FRT use by the Toronto Police Service, the Canadian Civil Liberties Association has similarly called for a moratorium on the future use of FRT by police in that city for the time being.
Requiring Democratic Approval Prior to FRT Acquisition or Use of Surveillance Technology
Multiple legislative bodies across the United States, primarily at the municipal level, have enacted, proposed, or are contemplating regulations that create prerequisites for the acquisition and use of surveillance technologies such as FRT by government actors, including law enforcement. Much of this movement on democratic surveillance oversight is grounded in the advocacy of the ACLU to promote Community Control Over Policing Surveillance (CCOPS), including the organization’s development of a model bill.
Berkeley (Cali.), Davis (Cali.), Cambridge (Mass.), Seattle, and Yellow Springs (Ohio) are among the cities that have adopted ordinances creating democratic oversight of surveillance technologies. According to the ACLU, efforts to enact similar legislation are also underway in additional municipalities, including Charlottesville (Vir.), Evanston (Ill.), Madison (Wisc.), and Muskegon (Mich.).
At their core, these statutes provide an opportunity for public input regarding the use of specific surveillance technology and require that government actors obtaining approval by elected officials prior to acquiring or using surveillance technologies, including FRT. (As discussed in more detail below, these laws also include a series of operational requirements.)
At the state level, a bill (H.470, Rep. Rachelson (D)) is currently before the Vermont legislature that would require specific authorization from the General Assembly prior to the state or law enforcement using certain types of surveillance technology, including FRT.
Studies & Task Forces
Rather than taking direct legislative action, several states and municipalities have opted to study or propose to study automated decision-making, surveillance technologies (including FRT), and/or general privacy regulations that could implicate FRT use.
Legislators in both New York (S06623, Sen. Sanders (D); A08042, Asm. Vanel (D)) and New Jersey (AJR206, Asms. Conaway (D) and Zwicker (D)) have proposed creating task forces that would study the impact of using FRT in both of those states, reporting back to their respective legislatures and governors. Another New Jersey bill (AB5300, Asms. Conaway (D) and Zwicker (D)) would require the Attorney General to obtain independent third-party testing and auditing of commonly available FRT systems, followed by a report back to the legislature on the results.
Among a current spate of FRT-related legislation in Massachusetts, one bill (H.2121, Rep. Provost (D)) has proposed to create a task force to develop a uniform code for the use of body cams, including a prohibition on the use of FRT in conjunction with this technology.
In 2018, Vermont struck an “Artificial Intelligence Task Force” (H.378, Rep. Cina (P)) whose mandate includes making recommendations on the use of artificial intelligence in state government and state regulation in the artificial intelligence field. This year, both Hawaii (HRC 225; Rep. Lee (D)) and Texas (HB 4390, Rep. Capriglione (R) and others) have convened groups to examine and recommend laws in relation to privacy and the protection of personal information.
Finally, two New York bills (A06787, Asm. Wallace (D) and others; S05140, Sen. Kavanagh (D) and others) propose to direct the Commissioner of Education to study the use of biometric identifying technology (including FRT) in schools, while prohibiting schools from purchasing or using such technology until July 1, 2022.