BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The legislature finds that the unregulated use of face surveillance poses a unique and significant threat to the civil rights and liberties of residents and visitors of Hawaii, especially with regard to the rights guaranteed by the First, Fourth, and Fourteenth Amendments of the Constitution of the United States and article I, sections 4, 5, 6, and 7 of the Hawaii State Constitution.
The legislature further finds that a study published in 2019 by the National Institute of Standards and Technology found that the majority of face surveillance technology systems are far less accurate in identifying the faces of women, elderly people, children, and people of color. These inaccuracies place certain persons at an elevated risk of harmful "false positive" identifications. Multiple studies and a growing base of experts have had similar findings. Additionally, numerous studies have shown that many of the databases to which face surveillance technology is applied are plagued by racial and other biases, which generate copycat biases in face surveillance data.
The legislature also finds that the broad application of face surveillance in public spaces is the functional equivalent of requiring every person to carry and display a personal photo identification card at all times and carry a government global positioning system tracking device, which constitutes an unacceptable mass violation of privacy without probable cause.
The legislature further believes that the benefits of using unregulated face surveillance can be outweighed by its harms. One known advantage of face surveillance in Hawaii is that some county police departments have used face surveillance technology in a limited capacity, in coordination with the Hawaii criminal justice data center in the department of the attorney general. In the police departments, surveillance images from a crime are compared against mugshots already existing in the Hawaii criminal justice data center's database. The program is intended to identify possible suspects by generating investigative leads for detectives. While the face surveillance program is relatively new and has been used relatively few times, the results of the program have been promising. The legislature believes that county police departments should be allowed to continue to use face surveillance for this limited purpose. However, until the technology matures and proper protections are put in place, the legislature finds further uses of face recognition technology should be vetted and approved by the legislature.
The legislature further finds that the increasing prevalence and sophistication of face surveillance technology for commercial purposes poses a unique threat to the civil rights and liberties of the State's residents and visitors. Commercial venues are beginning to incorporate face surveillance technology to support in-store tracking of individuals. The technology identifies individuals entering stores or, if the precise identity of an individual is yet unknown, surveys the individual's face to determine the individual's age and gender.
The legislature finds that this information is being sold to third parties or provided to foreign governments for purposes that are wholly inconsistent with the State's public policy and democratic principles. At least one foreign government is said to already have complete facial recognition profiles on all its citizens, which it uses to suppress free speech and invade the privacy of people within its borders without restraint. Hawaii's citizens should not be subject to such violation of privacy.
The purpose of this Act is to prohibit the:
(1) Government use of face surveillance, except for existing police department uses and certain situations relating to public safety; and
(2) Private use of face surveillance unless the subject of the face surveillance has given clear, discrete, written consent.
SECTION 2. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:
§ -1 Definitions. As used in this chapter:
"Face surveillance" means an automated or semiautomated process that:
(1) Assists in identifying or verifying an individual or capturing information about an individual based on the physical characteristics of the individual's face; or
(2) Uses characteristics of an individual's face, head, or body to infer emotion, associations, activities, or the location of the individual.
"Face surveillance system" means any computer software or application that performs face surveillance.
"Government" means the State, or any of its political subdivisions, departments, agencies, and instrumentalities, corporate or otherwise.
"Government official" means any person or entity acting on behalf of the State, or any of its political subdivisions, including any officer, employee, agent, contractor, subcontractor, or vendor.
"Private entity" means any individual, partnership, corporation, limited liability company, association, or other group, however organized.
"Written release" means informed written consent.
§ -2 Restriction on government use of face surveillance. (a) Except as provided in subsection (b), it shall be unlawful for the government or any government official to obtain, retain, access, or use:
(1) Any face surveillance system; or
(2) Any information obtained from a face surveillance system.
(b) Face surveillance technology or information obtained from a face surveillance system shall only be obtained, retained, accessed, or used:
(1) By law enforcement agency personnel trained in the use of face surveillance technology;
(2) To compare surveillance photographs or videos to arrest booking photographs from the Hawaii criminal justice data center;
(3) In a photo lineup conducted pursuant to section 801K-2;
(4) For other future public safety applications;
(5) For protection of public gatherings where mass violence threats exist; and
(6) For protection of government facilities and employees.
Information obtained from a face surveillance system shall not constitute probable cause for an arrest.
§ -3 Restriction on private use of face surveillance without permission. (a) It shall be unlawful for any private entity to obtain, retain, access, or use any face surveillance system or any information obtained through a face surveillance system, unless the private entity first:
(1) Informs the subject or the subject's legally authorized representative in writing that the private entity wishes to obtain, retain, access, or use face surveillance or information obtained through a face surveillance system;
(2) Informs the subject or the subject's legally authorized representative in writing of the specific purpose and length of term for which the private entity wishes to obtain, retain, access, or use face surveillance or information obtained through a face surveillance system; and
(3) Receives a clear, discrete, written release, which is not a part of or otherwise combined with any other permission granting instrument or function, executed by the proposed subject of the face surveillance or information obtained through a face surveillance system or that subject's legally authorized representative, granting permission to obtain, retain, access, or use face surveillance or information obtained through a face surveillance system with respect to that subject.
(b) In the absence of a clear, discrete, written release to do so, no private entity in possession of a face surveillance system or information obtained through a face surveillance system shall sell, share, lease, trade, or otherwise profit from information obtained through a face surveillance system.
(c) No private entity in possession of a face surveillance system or information obtained through a face surveillance system shall disclose, redisclose, or otherwise disseminate information obtained through a face surveillance system unless the subject of the face surveillance or information obtained through the face surveillance system or the subject's legally authorized representative consents to the disclosure or redisclosure pursuant to the standards contained in subsection (a).
(d) A private entity in possession of a face surveillance system or information obtained through a face surveillance system shall store, transmit, and protect from disclosure all information obtained through a face surveillance system:
(1) Using the reasonable standard of care within the private entity's industry; and
(2) In a manner that is the same as or more protective than the manner in which the private entity stores, transmits, and protects other confidential and sensitive information.
§ -4 Enforcement. (a) Notwithstanding any other law to the contrary, no data collected or derived from any use of face surveillance in violation of this chapter and no evidence derived therefrom shall be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority subject to the jurisdiction of the State. Face surveillance data collected or derived in violation of this chapter shall be considered unlawfully obtained and shall be deleted upon discovery.
(b) Any violation of this chapter constitutes an injury and any person may institute proceedings for injunctive relief, declaratory relief, or writ of mandate in any court of competent jurisdiction to enforce this chapter. An action instituted under this subsection shall be brought against the respective private entity or respective government, and, if necessary, to effectuate compliance with this chapter, any other governmental agency with possession, custody, or control of data subject to this chapter.
(c) Any person who has been subjected to face surveillance in violation of this chapter or about whom information has been obtained, retained, accessed, or used in violation of this chapter, may institute proceedings in any court of competent jurisdiction against the private entity or government and shall be entitled to recover actual damages, but no less than liquidated damages of $100 for each violation or $1,000, whichever is greater.
(d) A court shall award costs and reasonable attorneys' fees to a plaintiff who is the prevailing party in an action brought under subsection (b) or (c).
(e) Violations of this chapter by an employee of the government shall result in consequences that may include retraining, suspension, or termination, subject to due process requirements and the employee's collective bargaining agreement."
SECTION 3. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.
SECTION 4. This Act shall take effect upon its approval.
Face Surveillance; Government Use; Private Use; Consent
Limits the government use of face surveillance except under certain circumstances. Limits the private use of face surveillance unless the subject of the face surveillance has given consent. (SD1)