HF 465

as introduced - 92nd Legislature (2021 - 2022) Posted on 02/08/2021 04:12pm

A bill for an act
relating to public safety; limiting use of facial recognition technology; proposing
coding for new law in Minnesota Statutes, chapter 626A.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1. new text begin SHORT TITLE.
new text end

new text begin This act may be cited as the "Facial Recognition Technology Warrant Act of 2021."
new text end

Sec. 2.

new text begin [626A.50] DEFINITIONS.
new text end

new text begin (a) For the purposes of sections 626A.50 to 626A.53, the terms in this section have the
meanings given them.
new text end

new text begin (b) "Agency" means all departments, offices, and boards in the executive branch of state
government and all law enforcement agencies.
new text end

new text begin (c) "Covered court order" means a court order obtained according to Minnesota Rules
of Criminal Procedure rules 36 and 37 and in connection with the investigation of an offense
for which an order could be sought under this chapter.
new text end

new text begin (d) "Facial recognition technology" means technology that analyzes facial features and
is used for the unique personal identification of individuals in still or video images.
new text end

new text begin (e) "Ongoing surveillance" means the use of facial recognition technology to engage in
a sustained effort to track the physical movements of an identified individual through one
or more public places where the movements occur over a period of time greater than 72
hours, whether in real time or through application of the technology to historical records.
Ongoing surveillance does not include instances where facial recognition technology is
used for a single identification or attempted identification of an individual, if no subsequent
attempt is made to track that individual's movement in real time or through the use of
historical records after the individual has been identified.
new text end

Sec. 3.

new text begin [626A.51] LIMITATION ON USE OF FACIAL RECOGNITION
TECHNOLOGY.
new text end

new text begin Subdivision 1. new text end

new text begin General. new text end

new text begin (a) Subject to paragraph (b), an officer or employee of an agency
may not use facial recognition technology to engage in ongoing surveillance of an individual
or group of individuals in a public space unless:
new text end

new text begin (1) the use of the facial recognition technology is in support of a law enforcement activity;
and
new text end

new text begin (2) a covered court order has been obtained to allow the use of facial recognition
technology for ongoing surveillance of the individual or group of individuals; or
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new text begin (3) an investigative or law enforcement officer:
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new text begin (i) reasonably determines that exigent circumstances and compelling law enforcement
needs make it impractical to obtain a covered court order;
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new text begin (ii) reasonably determines that there are grounds for which a covered court order could
be obtained under clause (2); and
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new text begin (iii) causes an application for a covered court order to be made according to clause (2)
not later than 48 hours after the use of facial recognition technology to engage in ongoing
surveillance.
new text end

new text begin (b) If an application for a covered court order made under paragraph (a), clause (3), is
denied, the use of facial recognition technology shall terminate at the time of the denial.
new text end

new text begin Subd. 2. new text end

new text begin Duration of orders. new text end

new text begin (a) Subject to paragraph (b), a covered court order may
only authorize ongoing surveillance until the date on which the objective of the order is
satisfied, except that the order may not authorize ongoing surveillance for more than 30
days.
new text end

new text begin (b) The 30-day period under paragraph (a) shall begin on the earlier of:
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new text begin (1) the date on which the agency begins to use facial recognition technology; or
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new text begin (2) ten days after the date the court order is issued.
new text end

new text begin (c) A court may grant an extension of the 30-day period under paragraph (a) if the
extension meets the requirements of subdivision 1, paragraph (a), clause (2), and the extension
is no longer than 30 days.
new text end

new text begin Subd. 3. new text end

new text begin Minimization requirement. new text end

new text begin Any use of facial recognition technology under
a covered court order shall be conducted in a way to minimize the acquisition, retention,
and dissemination of information about the individuals other than those for whom there was
probable cause to seek the covered court order obtained under subdivision 1, paragraph (a),
clause (2).
new text end

new text begin Subd. 4. new text end

new text begin Motion to suppress. new text end

new text begin (a) Except as provided in paragraph (b), an aggrieved
individual who has been the subject of ongoing surveillance using facial recognition
technology, in a trial, hearing, or proceeding in or before a court, department, officer, agency,
regulatory body, or other authority of the state or a political subdivision of the state may
move to suppress information directly obtained through the use of facial recognition
technology or evidence derived from it in violation of this section, on the grounds that:
new text end

new text begin (1) the information was unlawfully obtained;
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new text begin (2) the order of authorization or approval under which the information was obtained is
not prima facie evidence; or
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new text begin (3) the use of facial recognition technology was not used in conformity with the order
of authorization or approval.
new text end

new text begin (b) Evidence obtained through the use of facial recognition technology in violation of
this section shall not be suppressed under paragraph (a) if the evidence was acquired by an
officer or employee of an agency with an objectively reasonable belief that the use of facial
recognition technology was in compliance with this section.
new text end

new text begin (c) A motion described under paragraph (a) shall be made before the trial, hearing, or
proceeding unless there was no opportunity to make the motion or the individual was not
aware of the grounds of the motion. If the motion is granted, the information directly obtained
through the use of facial recognition technology or evidence derived from it shall be treated
as having been obtained in violation of this section.
new text end

new text begin (d) The judge, upon the filing of a motion under this subdivision by the aggrieved
individual, may in the judge's discretion make available to the aggrieved individual or
counsel of the aggrieved individual for inspection the portions of the information or evidence
that the judge determines to be in the interests of justice.
new text end

new text begin (e) In addition to any other right to appeal, the prosecutor shall have the right to appeal
from an order granting a motion to suppress made under this subdivision, or the denial of
an application for an order of approval, if the prosecutor certifies to the judge or other official
granting the motion or denying the application that the appeal is not taken for purposes of
delay. The appeal shall be taken within 30 days after the date the order was entered and
shall be diligently prosecuted.
new text end

new text begin (f) The remedies and sanctions described in this subdivision with respect to the use of
facial recognition technology are the only judicial remedies and sanctions for
nonconstitutional violations of this section involving that technology.
new text end

Sec. 4.

new text begin [626A.52] REPORTS ON GOVERNMENT USE OF FACIAL RECOGNITION
TECHNOLOGY.
new text end

new text begin Subdivision 1. new text end

new text begin Report by judge. new text end

new text begin Not later than 30 days after issuance of a covered court
order under section 626A.51, subdivision 1, paragraph (a), clause (2); an extension under
section 626A.51, subdivision 2, paragraph (c); or the denial of the warrant or extension, the
issuing or denying judge shall report to the supreme court:
new text end

new text begin (1) that a warrant or extension was applied for;
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new text begin (2) that the warrant or extension was granted without modification, was modified and
granted, or was denied;
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new text begin (3) the period of time for which the warrant approves the use of facial recognition
technology, and the number and duration of any extensions; and
new text end

new text begin (4) the offense specified in the warrant or application.
new text end

new text begin Subd. 2. new text end

new text begin Reports. new text end

new text begin Beginning one year after the effective date of this section, and not
later than September 30 of each year thereafter, the supreme court shall submit to the house
of representatives and senate committees with jurisdiction over the judiciary and make
available to the public a full and complete report summarizing the data required to be filed
with the supreme court under subdivision 1, including at a minimum:
new text end

new text begin (1) the number of applications for covered court orders and extensions authorizing
delayed notice;
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new text begin (2) the number of covered court orders and extensions granted or denied during the
preceding fiscal year;
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new text begin (3) for each covered court order or extension granted:
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new text begin (i) the period of time for which the warrant approves the use of facial recognition
technology, and the number and duration of any extensions;
new text end

new text begin (ii) the offense specified in the covered court order or application, or extension of an
order;
new text end

new text begin (iii) the identity of the applying investigative or law enforcement officer and agency
making the application and the person authorizing the application; and
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new text begin (iv) the nature of the facilities or cameras from which the data analyzed by facial
recognition technology came from;
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new text begin (4) a general description of the identifications made under a covered court order or
extension, including at a minimum:
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new text begin (i) the approximate nature and frequency of use of the facial recognition technology;
new text end

new text begin (ii) the approximate number of persons who were subjected to analysis using the facial
recognition technology; and
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new text begin (iii) the approximate nature, amount, and cost of the manpower and other resources
when using facial recognition technology; and
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new text begin (5) the number of misidentifications, including an arrest of an individual that does not
result in charges being entered against the individual, made based upon information directly
obtained through the use of facial recognition technology, or evidence derived from it.
new text end

new text begin Subd. 3. new text end

new text begin Regulations. new text end

new text begin The supreme court may issue guidelines regarding the content
and form of the reports required to be filed under subdivision 1.
new text end

Sec. 5.

new text begin [626A.53] HUMAN REVIEW AND TESTING.
new text end

new text begin Subdivision 1. new text end

new text begin Human review of facial recognition technology. new text end

new text begin An agency shall require
a trained officer to examine the output or recommendation of a facial recognition system
before the agency investigates or otherwise interacts with an individual identified by the
system in connection with a covered court order issued under section 626A.51, subdivision
1, paragraph (a), clause (2), or in connection with an emergency under section 626A.51,
subdivision 1, paragraph (a), clause (3).
new text end

new text begin Subd. 2. new text end

new text begin Testing. new text end

new text begin The head of each agency, in consultation with the director of the
National Institute of Standards and Technology, shall establish testing procedures regarding
facial recognition technology systems used by the agency, including a process to:
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new text begin (1) periodically undertake independent tests of the performance of the system in typical
operational conditions;
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new text begin (2) identify relative performance across different subpopulations, including error rates
when the system is tested across subpopulations, alone and in combination with different
skin tones, ages, and genders; and
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new text begin (3) review the tests and take action to improve the accuracy of the system across
subpopulations upon a finding indicating there are disparate error rates when the system is
tested across subpopulations.
new text end