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SB-1038 Law enforcement: facial recognition and other biometric surveillance.(2021-2022)



Current Version: 02/15/22 - Introduced

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SB1038:v99#DOCUMENT


CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Senate Bill
No. 1038

Introduced by Senator Bradford

February 15, 2022

An act to amend Section 832.19 of the Penal Code, relating to law enforcement.


LEGISLATIVE COUNSEL'S DIGEST


SB 1038, as introduced, Bradford. Law enforcement: facial recognition and other biometric surveillance.
Existing law, until January 1, 2023, prohibits a law enforcement agency or law enforcement officer from installing, activating, or using any biometric surveillance system in connection with an officer camera or data collected by an officer camera. Existing law allows a person to bring an action for equitable or declaratory relief against a law enforcement agency or officer who violates this prohibition.
This bill would extend these provisions indefinitely.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NO   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 The Legislature finds and declares all of the following:
(a) Californians value privacy as an essential element of their individual freedom and are guaranteed a right to privacy in Section 1 of Article I of the California Constitution.
(b) Existing law, Section 832.19 of the Penal Code, has effectively protected privacy, safeguarded the rights of people exercising First Amendment rights, and prevented the misidentification of Californians and the creation of vulnerable biometric databases since January 1, 2020.
(c) Section 832.19 of the Penal Code has prevented the waste of critical public resources on ineffective mobile facial recognition programs, including a City of San Diego area facial recognition program that failed to produce a single arrest or prosecution in a seven-year period.
(d) Facial recognition and other biometric surveillance technology pose unique and significant threats to the civil rights and civil liberties of residents and visitors and would disproportionately pose a threat to marginalized Californians, including people of color and those living in highly policed communities. The use of facial recognition would also diminish effective policing and public safety by discouraging people in these communities, including victims of crime and undocumented persons, from seeking police assistance or from assisting the police.
(e) 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.
(f) Facial recognition and other biometric surveillance technology have been repeatedly demonstrated to misidentify women, young people, and people of color and to create an elevated risk of harmful “false positive” identifications. After the Legislature adopted Section 832.19 of the Penal Code, the federal government’s gold standard test found that Asian and Black people continue to be 100 times more likely to be misidentified by facial recognition algorithms than White men.
(g) Prominent technology companies like Microsoft, Amazon, and IBM are declining to sell facial recognition systems to law enforcement. Since the enactment of Section 832.19 of the Penal Code, the prominent body camera maker Axon has also rejected the use of facial recognition for body cameras, citing the potential inaccuracy and abuse.
(h) Body cameras are fundamentally incompatible with biometric surveillance. This is due to a number of factors, including officers being in near-constant motion, resulting in blurry and low-quality images that will lead to more false matches, as well as the wide-angle images captured body cameras, which result in warped faces that facilitate additional false matches.
(i) 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.

SEC. 2.

 Section 832.19 of the Penal Code is amended to read:

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.