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2019 NH H 1642
Author: Hopper
Version: Amended
Version Date: 02/19/2020

HB 1642-FN - AS AMENDED BY THE HOUSE

19Feb2020... 0622h

2020 SESSION

20-2070

04/03

HOUSE BILL 1642-FN

AN ACT prohibiting the state or a state official from using a face recognition system.

SPONSORS: Rep. Hopper, Hills. 2; Rep. Burt, Hills. 39; Rep. Ward, Rock. 28; Rep. Warden, Hills. 15; Rep. Cushing, Rock. 21; Rep. Welch, Rock. 13; Rep. Conley, Straf. 13; Rep. Abramson, Rock. 20

COMMITTEE: Executive Departments and Administration

AMENDED ANALYSIS

This bill prohibits the use of face recognition technology.

19Feb2020... 0622h

20-2070

04/03

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Twenty

AN ACT prohibiting the state or a state official from using a face recognition system.

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 New Subdivision; Breaches of the Peace; Face Recognition Technology Prohibited. Amend RSA 644 by inserting after section 22 the following new subdivision:

Face Recognition Technology Prohibited

644:23 Definitions. In this subdivision:

I. "Face recognition technology" means an automated or semi-automated process that assists in identifying an individual or capturing information about an individual, based on the physical characteristics of an individual's face.

II. "Face recognition system" means any computer software or application that performs face recognition.

III. "State" means any department, agency, bureau, or administrative unit of the state of New Hampshire, including any city, town, county, school district, or municipal entity therein.

IV. "State official" shall mean any person or entity acting on behalf of the state of New Hampshire as defined in paragraph III, including any officer, employee, agent, contractor, subcontractor, or vendor.

644:24 Face Recognition Technology Prohibited. Neither the state nor any state official shall obtain, retain, access, or use any face recognition system or any information obtained from a face recognition system. This section shall not prohibit a New Hampshire state law enforcement agency from lawfully assisting a federal agency in a joint law enforcement activity wherein the federal agency uses federal face recognition technology. A New Hampshire law enforcement agency or official shall not request, encourage, suggest, or otherwise initiate access to information or data from or use of an out-of-state face recognition system.

644:25 Evidence Inadmissible.

I. Any data or information collected or derived from any use of face recognition technology in violation of this subdivision shall be inadmissible 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 of New Hampshire.

II. Any evidence derived from data or information collected from any use of face recognition technology in violation of this subdivision shall be inadmissible 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 of New Hampshire.

III. Data or information collected using face recognition technology or derived from such data or information in violation of this subdivision shall be considered unlawfully obtained, and shall be irretrievably deleted from any document in possession of the state or in any court file or filing upon discovery.

644:26 Private Cause of Action.

I. Any person aggrieved by a violation of this subdivision may file for injunctive relief, declaratory relief, or writ of mandamus in any court of competent jurisdiction to enforce this subdivision. An action instituted under this section shall be brought against the respective department of the state of New Hampshire or any other governmental agency with possession, custody, or control of data or information subject to this subdivision, if necessary to effectuate compliance with this subdivision.

II. Any person who has been subjected to face recognition technology in violation of this subdivision, or about whom information has been obtained, retained, accessed, or used in violation of this subdivision, may file an action in any court of competent jurisdiction against the state and shall be entitled to recover actual damages, but not less than liquidated damages of $1,000 or $100 for each violation, whichever is greater.

III. A court shall award costs and reasonable attorneys' fees to a plaintiff who is the prevailing party in an action brought under this section.

644:27 Consequences. A violation of this subdivision by a state official shall result in consequences that may include retraining, suspension, or termination, subject to due process requirements.

2 Drivers' Licenses; Use of Facial Recognition Technology Prohibited. Amend RSA 263:40-b to read as follows:

263:40-b Use of Facial Recognition Technology Prohibited. The department is prohibited from using any facial recognition technology in connection with taking or retaining any photograph or digital image for purposes of this chapter.

3 Effective Date. This act shall take effect 60 days after its passage.

HB 1642-FN- FISCAL NOTE

AS INTRODUCED

AN ACT prohibiting the state or a state official from using a facial surveillance system.

FISCAL IMPACT: [ X ] State [ X ] County [ X ] Local [ ] None

Estimated Increase / (Decrease)
STATE: FY 2020 FY 2021 FY 2022 FY 2023
Appropriation $0 $0 $0 $0
Revenue $0 $0 $0 $0
Expenditures $0 Indeterminable Indeterminable Indeterminable
Funding Source: [ X ] General [ ] Education [ ] Highway [ ] Other
COUNTY:
Revenue $0 $0 $0 $0
Expenditures $0 Indeterminable Indeterminable Indeterminable
LOCAL:
Revenue $0 $0 $0 $0
Expenditures $0 Indeterminable Indeterminable Indeterminable

The Judicial Branch was originally contacted on October 15, 2019 for a fiscal note worksheet, which they have not provided as of December 11, 2019.

METHODOLOGY:

This bill prohibits state or municipal officials from obtaining or using any face surveillance system or any information received from such a system. Data collected from such a system shall be inadmissible in any judicial proceeding and violations of this provision will create a private cause of action against the government entity using such information.

The Department of Justice indicates the bill will have little to no impact on the current caseload prosecutions of the Attorney General's Office. However, any possible increase in civil litigation against the state is unknown, and the Department is unable to determine what, if any fiscal impact may result from defending the state from such claims.

The Departments of Administrative Services and Safety indicated they do not use such systems presently.

It is assumed this bill will not take effect until FY 2021.

AGENCIES CONTACTED:

Departments of Justice, Administrative Services and Safety, and Judicial Branch


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