HB1339: Facial recognition technology; redefines, local law enforcement and campus police to utilize.


HOUSE BILL NO. 1339
FLOOR AMENDMENT IN THE NATURE OF A SUBSTITUTE
(Proposed by Senator Surovell
on February 28, 2022)
(Patron Prior to Substitute--Delegate Leftwich)
A BILL to amend and reenact §§ 15.2-1723.2 and 23.1-815.1 of the Code of Virginia and to amend the Code of Virginia by adding a section numbered 52-4.5, relating to facial recognition technology; Department of State Police and authorized uses; report; penalty.

Be it enacted by the General Assembly of Virginia:

1. That §§ 15.2-1723.2 and 23.1-815.1 of the Code of Virginia are amended and reenacted and that the Code of Virginia is amended by adding a section numbered 52-4.5 as follows:

§ 15.2-1723.2. Facial recognition technology; approval; penalty.

A. For purposes of this section, "facial:

"Authorized use" means the use of facial recognition technology to (i) help identify an individual when there is a reasonable suspicion the individual has committed a crime; (ii) help identify a crime victim, including a victim of online sexual abuse material; (iii) help identify a person who may be a missing person or witness to criminal activity; (iv) help identify a victim of human trafficking or an individual involved in the trafficking of humans, weapons, drugs, or wildlife; (v) help identify an online recruiter of criminal activity, including but not limited to human, weapon, drug, and wildlife trafficking; (vi) help a person who is suffering from a mental or physical disability impairing his ability to communicate and be understood; (vii) help identify a deceased person; (viii) help identify a person who is incapacitated or otherwise unable to identify himself; (ix) help identify a person who is reasonably believed to be a danger to himself or others; (x) help identify an individual lawfully detained; (xi) help mitigate an imminent threat to public safety, a significant threat to life, or a threat to national security, including acts of terrorism; (xii) ensure officer safety as part of the vetting of undercover law enforcement; (xiii) determine whether an individual may have unlawfully obtained one or more state driver's licenses, financial instruments, or other official forms of identification using information that is fictitious or associated with a victim of identity theft; or (xiv) help identify a person who an officer reasonably believes is concealing his true identity and about whom the officer has a reasonable suspicion has committed a crime other than concealing his identity.

"Facial recognition technology" means an electronic system or service for enrolling, capturing, extracting, comparing, and matching an individual's geometric facial data to identify individuals in photos, videos, or real time conducting an algorithmic comparison of images of a person's facial features for the purpose of identification. "Facial recognition technology" does not include the use of an automated or semi-automated process to redact a recording in order to protect the privacy of a subject depicted in the recording prior to release or disclosure of the recording outside of the law-enforcement agency if the process does not generate or result in the retention of any biometric data or surveillance information.

"Publicly post" means to post on a website that is maintained by the entity or on any other website on which the entity generally posts information and that is available to the public or that clearly describes how the public may access such data.

"State Police Model Facial Recognition Technology Policy" means the model policy developed and published by the Department of State Police pursuant to § 52-4.5.

B. No Pursuant to § 2.2-1112, the Division of Purchases and Supply (the Division) shall determine the appropriate facial recognition technology for use in accordance with this section. The Division shall not approve any facial recognition technology unless it has been evaluated by the National Institute of Standards and Technology (NIST) as part of the Face Recognition Vendor Test. Any facial recognition technology utilized shall utilize algorithms that have demonstrated (i) an accuracy score of at least 98 percent true positives within one or more datasets relevant to the application in a NIST Face Recognition Vendor Test report and (ii) minimal performance variations across demographics associated with race, skin tone, ethnicity, or gender. The Division shall require all approved vendors to annually provide independent assessments and benchmarks offered by NIST to confirm continued compliance with this section.

C. A local law-enforcement agency shall purchase or deploy may use facial recognition technology unless such purchase or deployment of facial recognition technology is expressly authorized by statute for authorized uses. For purposes of this section, a statute that does not refer to facial recognition technology shall not be construed to provide express authorization. Such statute shall require that any facial recognition technology purchased or deployed by the local law-enforcement agency be maintained under the exclusive control of such local law-enforcement agency and that any data contained by such facial recognition technology be kept confidential, not be disseminated or resold, and be accessible only by a search warrant issued pursuant to Chapter 5 (§ 19.2-52 et seq.) of Title 19.2 or an administrative or inspection warrant issued pursuant to law. A match made through facial recognition technology shall not be included in an affidavit to establish probable cause for purposes of issuance of a search warrant or an arrest warrant but shall be admissible as exculpatory evidence.

C. D. A local law-enforcement agency shall publicly post and annually update its policy regarding the use of facial recognition technology before employing such facial recognition technology to investigate a specific criminal incident or citizen welfare situation. A local law-enforcement agency that uses facial recognition technology may adopt the State Police Model Facial Recognition Technology Policy. If a local law-enforcement agency uses facial recognition technology but does not adopt such model policy, such agency shall develop its own policy within 90 days of publication of the State Police Model Facial Recognition Technology Policy that meets or exceeds the standards set forth in such model policy. A local law-enforcement agency shall not utilize any facial recognition technology until after the publication of the State Police Model Facial Recognition Technology Policy and after publication of the agency's policy regarding the use of facial recognition technology.

E. Any local law-enforcement agency that uses facial recognition technology shall maintain records sufficient to facilitate discovery in criminal proceedings, post-conviction proceedings, public reporting, and auditing of compliance with such agency's facial recognition technology policies. Such agency shall collect data pertaining to (i) a complete history of each user's queries; (ii) the total number of queries conducted; (iii) the number of queries that resulted in a list of possible candidates; (iv) how many times an examiner offered law enforcement an investigative lead based on his findings; (v) how many cases were closed due to an investigative lead from facial recognition technology; (vi) what types of criminal offenses are being investigated; (vii) the nature of the image repository being compared or queried; (viii) demographic information for the individuals whose images are queried; and (ix) if applicable, any other entities with which the agency shared facial recognition data.

F. Any chief of police whose agency uses facial recognition technology shall publicly post and annually update a report by April 1 each year to provide information to the public regarding the agency's use of facial recognition technology. The report shall include all data required by clauses (ii) through (viii) of subsection E in addition to (i) all instances of unauthorized access of the facial recognition technology, including any unauthorized access by employees of the agency; (ii) vendor information, including the specific algorithms employed; and (iii) if applicable, data or links related to third-party testing of such algorithms, including any reference to variations in demographic performance. If any information or data (a) contains an articulable concern for any person's safety; (b) is otherwise prohibited from public disclosure by federal or state statute; or (c) if disclosed, may compromise sensitive criminal justice information, such information or data may be excluded from public disclosure. Nothing herein shall limit disclosure of data collected pursuant to subsection E when such disclosure is related to a writ of habeas corpus.

For purposes of this subsection, "sensitive criminal justice information" means information related to (1) a particular ongoing criminal investigation or proceeding, (2) the identity of a confidential source, or (3) law-enforcement investigative techniques and procedures.

G. At least 30 days prior to procuring facial recognition technology, a local law-enforcement agency shall notify in writing the governing body of the locality that such agency serves of such intended procurement, but such notice shall not be required if such procurement is directed by the governing body.

H. Nothing in this section shall apply to commercial air service airports.

I. Any facial recognition technology operator employed by a local law-enforcement agency who (i) violates the agency's policy for the use of facial recognition technology or (ii) conducts a search for any reason other than an authorized use is guilty of a Class 3 misdemeanor and shall be required to complete training on the agency's policy on and authorized uses of facial recognition technology before being reinstated to operate such facial recognition technology. The local law-enforcement agency shall terminate from employment any facial recognition technology operator who violates clause (i) or (ii) for a second time.

§ 23.1-815.1. Facial recognition technology; approval; penalty.

A. For purposes of this subsection, "facial section:

"Authorized use" means the use of facial recognition technology to (i) help identify an individual when there is a reasonable suspicion the individual has committed a crime; (ii) help identify a crime victim, including a victim of online sexual abuse material; (iii) help identify a person who may be a missing person or witness to criminal activity; (iv) help identify a victim of human trafficking or an individual involved in the trafficking of humans, weapons, drugs, or wildlife; (v) help identify an online recruiter of criminal activity, including but not limited to human, weapon, drug, and wildlife trafficking; (vi) help a person who is suffering from a mental or physical disability impairing his ability to communicate and be understood; (vii) help identify a deceased person; (viii) help identify a person who is incapacitated or otherwise unable to identify himself; (ix) help identify a person who is reasonably believed to be a danger to himself or others; (x) help identify an individual lawfully detained; (xi) help mitigate an imminent threat to public safety, a significant threat to life, or a threat to national security, including acts of terrorism; (xii) ensure officer safety as part of the vetting of undercover law enforcement; (xiii) determine whether an individual may have unlawfully obtained one or more state driver's licenses, financial instruments, or other official forms of identification using information that is fictitious or associated with a victim of identity theft; or (xiv) help identify a person who an officer reasonably believes is concealing his true identity and about whom the officer has a reasonable suspicion has committed a crime other than concealing his identity.

"Facial recognition technology" means an electronic system or service for enrolling, capturing, extracting, comparing, and matching an individual's geometric facial data to identify individuals in photos, videos, or real time conducting an algorithmic comparison of images of a person's facial features for the purpose of identification. "Facial recognition technology" does not include the use of an automated or semi-automated process to redact a recording in order to protect the privacy of a subject depicted in the recording prior to release or disclosure of the recording outside of the law-enforcement agency if the process does not generate or result in the retention of any biometric data or surveillance information.

"Publicly post" means to post on a website that is maintained by the entity or on any other website on which the entity generally posts information and that is available to the public or that clearly describes how the public may access such data.

"State Police Model Facial Recognition Technology Policy" means the model policy developed and published by the Department of State Police pursuant to § 52-4.5.

B. No Pursuant to § 2.2-1112, the Division of Purchases and Supply (the Division) shall determine the appropriate facial recognition technology for use in accordance with this section. The Division shall not approve any facial recognition technology unless it has been evaluated by the National Institute of Standards and Technology (NIST) as part of the Face Recognition Vendor Test. Any facial recognition technology utilized shall utilize algorithms that have demonstrated (i) an accuracy score of at least 98 percent true positives within one or more datasets relevant to the application in a NIST Face Recognition Vendor Test report and (ii) minimal performance variations across demographics associated with race, skin tone, ethnicity, or gender. The Division shall require all approved vendors to annually provide independent assessments and benchmarks offered by NIST to confirm continued compliance with this section.

C. A campus police department shall purchase or deploy may use facial recognition technology unless such purchase or deployment of facial recognition technology is expressly authorized by statute for authorized uses. For purposes of this section, a statute that does not refer to facial recognition technology shall not be construed to provide express authorization. Such statute shall require that any facial recognition technology purchased or deployed by the campus police department be maintained under the exclusive control of such campus police department and that any data contained by such facial recognition technology be kept confidential, not be disseminated or resold, and be accessible only by a search warrant issued pursuant to Chapter 5 (§ 19.2-52 et seq.) of Title 19.2 or an administrative or inspection warrant issued pursuant to law. A match made through facial recognition technology shall not be included in an affidavit to establish probable cause for purposes of issuance of a search warrant or an arrest warrant but shall be admissible as exculpatory evidence.

D. A campus police department shall publicly post and annually update its policy on use of facial recognition technology before employing such facial recognition technology to investigate a specific criminal incident or citizen welfare situation. A campus police department that uses facial recognition technology may adopt the State Police Model Facial Recognition Technology Policy. If a campus police department uses facial recognition technology but does not adopt the State Police Model Facial Recognition Technology Policy, such department shall develop its own policy within 90 days of publication of the State Police Model Facial Recognition Technology Policy that meets or exceeds the standards set forth in such model policy. Any policy adopted or developed pursuant to this subsection shall be updated annually. A campus police department shall not utilize any facial recognition technology until after the publication of the State Police Model Facial Recognition Technology Policy and after publication of the department's policy regarding use of facial recognition technology.

E. Any campus police department that uses facial recognition technology shall maintain records sufficient to facilitate discovery in criminal proceedings, post-conviction proceedings, public reporting, and auditing of compliance with such department's facial recognition technology policies. Such department that uses facial recognition technology shall collect data pertaining to (i) a complete history of each user's queries; (ii) the total number of queries conducted; (iii) the number of queries that resulted in a list of possible candidates; (iv) how many times an examiner offered campus police an investigative lead based on his findings; (v) how many cases were closed due to an investigative lead from facial recognition technology; (vi) what types of criminal offenses are being investigated; (vii) the nature of the image repository being compared or queried; (viii) demographic information for the individuals whose images are queried; and (ix) if applicable, any other entities with which the department shared facial recognition data.

F. Any chief of a campus police department whose department uses facial recognition technology shall publicly post and annually update a report by April 1 each year to provide information to the public regarding the department's use of facial recognition technology. The report shall include all data required by clauses (ii) through (viii) of subsection E in addition to (i) all instances of unauthorized access of the facial recognition technology, including any unauthorized access by employees of the campus police department; (ii) vendor information, including the specific algorithms employed; and (iii) if applicable, data or links related to third-party testing of such algorithms, including any reference to variations in demographic performance. If any information or data (a) contains an articulable concern for any person's safety; (b) is otherwise prohibited from public disclosure by federal or state statute; or (c) if disclosed, may compromise sensitive criminal justice information, such information or data may be excluded from public disclosure. Nothing herein shall limit disclosure of data collected pursuant to subsection E when such disclosure is related to a writ of habeas corpus.

For purposes of this subsection, "sensitive criminal justice information" means information related to (1) a particular ongoing criminal investigation or proceeding, (2) the identity of a confidential source, or (3) law-enforcement investigative techniques and procedures.

G. At least 30 days prior to procuring facial recognition technology, a campus police department shall notify in writing the institution of higher education that such department serves of such intended procurement, but such notice shall not be required if such procurement is directed by the institution of higher education.

H. Any facial recognition technology operator employed by a campus police department who (i) violates the department's policy for the use of facial recognition technology or (ii) conducts a search for any reason other than an authorized use is guilty of a Class 3 misdemeanor and shall be required to complete training on the department's policy on and authorized uses of facial recognition technology before being reinstated to operate such facial recognition technology. The campus police department shall terminate from employment any facial recognition technology operator who violates clause (i) or (ii) for a second time.

§ 52-4.5. Facial recognition technology; authorized uses; Department to establish a State Police Model Facial Recognition Technology Policy; penalty.

A. For purposes of this section:

"Authorized use" means the use of facial recognition technology to (i) help identify an individual when there is a reasonable suspicion the individual has committed a crime; (ii) help identify a crime victim, including a victim of online sexual abuse material; (iii) help identify a person who may be a missing person or witness to criminal activity; (iv) help identify a victim of human trafficking or an individual involved in the trafficking of humans, weapons, drugs, or wildlife; (v) help identify an online recruiter of criminal activity, including but not limited to human, weapon, drug, and wildlife trafficking; (vi) help a person who is suffering from a mental or physical disability impairing his ability to communicate and be understood; (vii) help identify a deceased person; (viii) help identify a person who is incapacitated or otherwise unable to identify himself; (ix) help identify a person who is reasonably believed to be a danger to himself or others; (x) help identify an individual lawfully detained; (xi) help mitigate an imminent threat to public safety, a significant threat to life, or a threat to national security, including acts of terrorism; (xii) ensure officer safety as part of the vetting of undercover law enforcement; (xiii) determine whether an individual may have unlawfully obtained one or more state driver's licenses, financial instruments, or other official forms of identification using information that is fictitious or associated with a victim of identity theft; or (xiv) help identify a person who an officer reasonably believes is concealing his true identity and about whom the officer has a reasonable suspicion has committed a crime other than concealing his identity.

"Facial recognition technology" means an electronic system or service for conducting an algorithmic comparison of images of a person's facial features for the purpose of identification. "Facial recognition technology" does not include the use of automated or semi-automated process to redact a recording in order to protect the privacy of a subject depicted in the recording prior to release or disclosure of the recording outside of the law-enforcement agency if the process does not generate or result in the retention of any biometric data or surveillance information.

"Publicly post" means to post on a website that is maintained by the entity or on any other website on which the entity generally posts information and that is available to the public or that clearly describes how the public may access such data.

B. Pursuant to § 2.2-1112, the Division of Purchases and Supply (the Division) shall determine the appropriate facial recognition technology for use in accordance with this section. The Division shall not approve any facial recognition technology unless it has been evaluated by the National Institute of Standards and Technology (NIST) as part of the Face Recognition Vendor Test. Any facial recognition technology utilized shall utilize algorithms that have demonstrated (i) an accuracy score of at least 98 percent true positives within one or more datasets relevant to the application in a NIST Face Recognition Vendor Test report and (ii) minimal performance variations across demographics associated with race, skin tone, ethnicity, or gender. The Division shall require all approved vendors to annually provide independent assessments and benchmarks offered by NIST to confirm continued compliance with this section.

C. The Department shall create a model policy regarding the use of facial recognition technology, which shall be known as the State Police Model Facial Recognition Technology Policy. The Department shall publicly post such policy no later than January 1, 2023, and such policy shall be updated annually thereafter and shall include:

1. The nature and frequency of specialized training required for an individual to be authorized by a law-enforcement agency to utilize facial recognition as authorized by this section;

2. The extent to which a law-enforcement agency shall document (i) instances when facial recognition technology is used for authorized purposes and (ii) how long such information is retained;

3. Procedures for the confirmation of any initial findings generated by facial recognition technology by a secondary examiner; and

4. Promulgation of standing orders, policies, or public materials by law-enforcement agencies that use facial recognition technology.

D. The Department may use facial recognition technology for authorized uses. A match made through facial recognition technology shall not be included in an affidavit to establish probable cause for purposes of issuance of a search warrant or an arrest warrant but shall be admissible as exculpatory evidence.

E. The Department shall maintain records regarding its use of facial recognition technology. Such records shall be sufficient to facilitate discovery in criminal proceedings, post-conviction proceedings, public reporting, and auditing of compliance with the Department's policy. The Department shall collect data pertaining to (i) a complete history of each user's queries; (ii) the total number of queries conducted; (iii) the number of queries that resulted in a list of possible candidates; (iv) how many times an examiner offered the Department an investigative lead based on his findings; (v) how many cases were closed due to an investigative lead from facial recognition technology; (vi) what types of criminal offenses are being investigated; (vii) the nature of the image repository being compared or queried; (viii) demographic information for the individuals whose images are queried; and (ix) if applicable, any other entities with which the Department shared facial recognition data.

F. The Superintendent shall publicly post and annually update a report by April 1 each year to provide information to the public regarding the Department's use of facial recognition technology. The report shall include all data required by clauses (ii) through (viii) of subsection E in addition to (i) all instances of unauthorized access of the facial recognition technology, including any unauthorized access by employees of the Department; (ii) vendor information, including the specific algorithms employed; and (iii) if applicable, data or links related to third-party testing of such algorithms, including any reference to variations in demographic performance. If any information or data (a) contains an articulable concern for any person's safety; (b) is otherwise prohibited from public disclosure by federal or state statute; or (c) if disclosed, may compromise sensitive criminal justice information, such information or data may be excluded from public disclosure. Nothing herein shall limit disclosure of data collected pursuant to subsection E when such disclosure is related to a writ of habeas corpus.

For purposes of this subsection, "sensitive criminal justice information" means information related to (1) a particular ongoing criminal investigation or proceeding, (2) the identity of a confidential source, or (3) law-enforcement investigative techniques and procedures.

G. Any facial recognition technology operator employed by the Department who (i) violates the Department's policy for the use of facial recognition technology or (ii) conducts a search for any reason other than an authorized use is guilty of a Class 3 misdemeanor and shall be required to complete training on the Department's policy on and authorized uses of facial recognition technology before being reinstated to operate such facial recognition technology. The Department shall terminate from employment any facial recognition technology operator who violates clause (i) or (ii) for a second time.

2. That the Department of Criminal Justice Services (the Department) shall analyze and report on the usage data of facial recognition technology reported and published by local law-enforcement agencies, campus police departments, and the Department of State Police pursuant to the provisions of this act. The Department shall include in its report an analysis of and recommendations for (i) improving the use of facial recognition technology as it relates to demographics associated with race, skin tone, ethnicity, and gender; (ii) specialized training, data storage, data retention, and the use of a second examiner pursuant to the State Police Model Facial Recognition Technology Policy established by § 52-4.5 of the Code of Virginia, as created by this act; and (iii) investigations and investigative outcomes related to the accuracy of identification across different demographic groups. The Department shall submit its report to the Chairmen of the Senate Committee on the Judiciary and the House Committee on Public Safety by November 1, 2025.

3. That the provisions of this act shall expire on July 1, 2026.


HOUSE BILL NO. 1339
AMENDMENT IN THE NATURE OF A SUBSTITUTE
(Proposed by the House Committee on Public Safety)
(Patron Prior to Substitute--Delegate Leftwich)
House Amendments in [ ] -- February 14, 2022
A BILL to amend and reenact §§ 15.2-1723.2 and 23.1-815.1 of the Code of Virginia and to amend the Code of Virginia by adding a section numbered 52-4.5, relating to facial recognition technology; Department of State Police and authorized uses [ ; report; penalty ] .

Be it enacted by the General Assembly of Virginia:

1. That §§ 15.2-1723.2 and 23.1-815.1 of the Code of Virginia are amended and reenacted and that the Code of Virginia is amended by adding a section numbered 52-4.5 as follows:

§ 15.2-1723.2. Facial recognition technology; approval [ ; penalty ] .

A. For purposes of this section, "facial:

"Authorized use" means the use of facial recognition technology to (i) help identify an individual when there is a reasonable suspicion the individual has committed [ , is committing, or is planning the commission of ] a crime; (ii) help identify a crime victim, including a victim of online sexual abuse material; (iii) help identify a person who may be a missing person or witness to criminal activity; (iv) help identify a victim of human trafficking or an individual involved in the trafficking of humans, weapons, drugs, or wildlife; (v) help identify an online recruiter of criminal activity, including but not limited to  human, weapon, drug, and wildlife trafficking; (vi) help a person who is suffering from a mental or physical disability impairing his ability to communicate and be understood; (vii) help identify a deceased person; (viii) help identify a person who is incapacitated or otherwise unable to identify himself; (ix) help identify a person who is reasonably believed to be a danger to himself or others; (x) help identify an individual lawfully detained; (xi) help mitigate an imminent threat to public safety, a significant threat to life, or a threat to national security, including acts of terrorism; (xii) ensure officer safety as part of the vetting of undercover law enforcement; (xiii) determine whether an individual may have unlawfully obtained one or more state driver's licenses, financial instruments, or other official forms of identification using information that is fictitious or associated with a victim of identity theft; or (xiv) help identify a person who an officer reasonably believes is concealing his true identity and about whom the officer has a reasonable suspicion has committed a crime other than concealing his identity.

"Facial recognition technology" means an electronic system or service for enrolling, capturing, extracting, comparing, and matching an individual's geometric facial data to identify individuals in photos, videos, or real time conducting an algorithmic comparison of images of a person's facial features for the purpose of identification. "Facial recognition technology" does not include the use of an automated or semi-automated process to redact a recording in order to protect the privacy of a subject depicted in the recording prior to release or disclosure of the recording outside of the law-enforcement agency if the process does not generate or result in the retention of any biometric data or surveillance information.

"Publicly post" means to post on a website that is maintained by the entity or on any other website on which the entity generally posts information and that is available to the public or that clearly describes how the public may access such data.

"State Police Model Facial Recognition Technology Policy" means the model policy developed and published by the Department of State Police pursuant to § 52-4.5.

B. No Pursuant to § 2.2-1112, the Division of Purchases and Supply (the Division) shall determine the appropriate facial recognition technology for use in accordance with this section. The Division shall not approve any facial recognition technology unless it has been evaluated by the National Institute of Standards and Technology (NIST) as part of the Face Recognition Vendor Test. Any facial recognition technology utilized shall utilize algorithms that have demonstrated (i) an accuracy score of at least 98 percent true positives within one or more datasets relevant to the application in a NIST Facial Recognition Vendor Test report and (ii) minimal performance variations across demographics associated with race, skin tone, ethnicity, or gender. The Division shall require all approved vendors to annually provide independent assessments and benchmarks offered by NIST to confirm continued compliance with this section.

C. A local law-enforcement agency shall purchase or deploy may use facial recognition technology unless such purchase or deployment of facial recognition technology is expressly authorized by statute for authorized uses. For purposes of this section, a statute that does not refer to facial recognition technology shall not be construed to provide express authorization. Such statute shall require that any facial recognition technology purchased or deployed by the local law-enforcement agency be maintained under the exclusive control of such local law-enforcement agency and that any data contained by such facial recognition technology be kept confidential, not be disseminated or resold, and be accessible only by a search warrant issued pursuant to Chapter 5 (§ 19.2-52 et seq.) of Title 19.2 or an administrative or inspection warrant issued pursuant to law. A match made through facial recognition technology shall not constitute probable cause for an arrest but shall be admissible as exculpatory evidence.

C. D. A local law-enforcement agency shall publicly post and annually update its policy regarding the use of facial recognition technology before employing such facial recognition technology to investigate a specific criminal incident or citizen welfare situation. A local law-enforcement agency that uses facial recognition technology may adopt the State Police Model Facial Recognition Technology Policy. If a local law-enforcement agency uses facial recognition technology but does not adopt such model policy, such agency shall develop its own policy within 90 days of publication of the State Police Model Facial Recognition Technology Policy that meets or exceeds the standards set forth in such model policy.

E. Any local law-enforcement agency that uses facial recognition technology shall maintain records sufficient to facilitate discovery in criminal proceedings, post-conviction proceedings, public reporting, and auditing of compliance with such agency's facial recognition technology policies. Such agency shall collect data pertaining to (i) a complete history of each user's queries; (ii) the total number of queries conducted; (iii) the number of queries that resulted in a list of possible candidates; (iv) how many times an examiner offered law enforcement an investigative lead based on his findings; (v) how many cases were closed due to an investigative lead from facial recognition technology; (vi) what types of criminal offenses are being investigated; (vii) the nature of the image repository being compared or queried; [ and ] (viii) [ demographic information for the individuals whose images are queried; and (ix) ] if applicable, any other entities with which the agency shared facial recognition data.

F. Any chief of police whose agency uses facial recognition technology shall publicly post and annually update a report by April 1 each year to provide information to the public regarding the agency's use of facial recognition technology. The report shall include all data required by clauses (ii) through (viii) of subsection E in addition to (i) all instances of unauthorized access of the facial recognition technology, including any unauthorized access by employees of the agency; (ii) vendor information, including the specific algorithms employed; and (iii) if applicable, data or links related to third-party testing of such algorithms, including any reference to variations in demographic performance. If any information or data (a) contains an articulable concern for any person's safety, (b) is otherwise prohibited from public disclosure by federal or state statute, or (c) if disclosed, may compromise sensitive criminal justice information, such information or data may be excluded from public disclosure. Nothing herein shall limit disclosure of data collected pursuant to subsection E when such disclosure is related to a writ of habeas corpus.

For purposes of this subsection, "sensitive criminal justice information" means information related to (1) a particular ongoing criminal investigation or proceeding, (2) the identity of a confidential source, or (3) law-enforcement investigative techniques and procedures.

G. At least 30 days prior to procuring facial recognition technology, a local law-enforcement agency shall notify in writing the governing body of the locality that such agency serves of such intended procurement, but such notice shall not be required if such procurement is directed by the governing body.

H. Nothing in this section shall apply to commercial air service airports.

[ I. Any facial recognition technology operator employed by a local law-enforcement agency who (i) violates the agency's policy for the use of facial recognition technology or (ii) conducts a search for any reason other than an authorized use is guilty of a Class 3 misdemeanor and shall be required to complete training on the agency's policy on and authorized uses of facial recognition technology before being reinstated to operate such facial recognition technology. The local law-enforcement agency shall terminate from employment any facial recognition technology operator who violates clause (i) or (ii) for a second time. ]

§ 23.1-815.1. Facial recognition technology; approval [ ; penalty ] .

A. For purposes of this subsection, "facial section:

"Authorized use" means the use of facial recognition technology to (i) help identify an individual when there is a reasonable suspicion the individual has committed [ , is committing, or is planning the commission of ] a crime; (ii) help identify a crime victim, including a victim of online sexual abuse material; (iii) help identify a person who may be a missing person or witness to criminal activity; (iv) help identify a victim of human trafficking or an individual involved in the trafficking of humans, weapons, drugs, or wildlife; (v) help identify an online recruiter of criminal activity, including but not limited to human, weapon, drug, and wildlife trafficking; (vi) help a person who is suffering from a mental or physical disability impairing [ the person's his ] ability to communicate and be understood; (vii) help identify a deceased person; (viii) help identify a person who is incapacitated or otherwise unable to identify himself; (ix) help identify a person who is reasonably believed to be a danger to himself or others; (x) help identify an individual lawfully detained; (xi) help mitigate an imminent threat to public safety, a significant threat to life, or a threat to national security, including acts of terrorism; (xii) ensure officer safety as part of the vetting of undercover law enforcement; (xiii) determine whether an individual may have unlawfully obtained one or more state driver's licenses, financial instruments, or other official forms of identification using information that is fictitious or associated with a victim of identity theft; or (xiv) help identify a person who an officer reasonably believes is concealing his true identity and about whom the officer has a reasonable suspicion has committed a crime other than concealing his identity.

"Facial recognition technology" means an electronic system or service for enrolling, capturing, extracting, comparing, and matching an individual's geometric facial data to identify individuals in photos, videos, or real time conducting an algorithmic comparison of images of a person's facial features for the purpose of identification. "Facial recognition technology" does not include the use of an automated or semi-automated process to redact a recording in order to protect the privacy of a subject depicted in the recording prior to release or disclosure of the recording outside of the law-enforcement agency if the process does not generate or result in the retention of any biometric data or surveillance information.

"Publicly post" means to post on a website that is maintained by the entity or on any other website on which the entity generally posts information and that is available to the public or that clearly describes how the public may access such data.

"State Police Model Facial Recognition Technology Policy" means the model policy developed and published by the Department of State Police pursuant to § 52-4.5.

B. No Pursuant to § 2.2-1112, the Division of Purchases and Supply (the Division) shall determine the appropriate facial recognition technology for use in accordance with this section. The Division shall not approve any facial recognition technology unless it has been evaluated by the National Institute of Standards and Technology (NIST) as part of the Face Recognition Vendor Test. Any facial recognition technology utilized shall utilize algorithms that have demonstrated (i) an accuracy score of at least 98 percent true positives within one or more datasets relevant to the application in a NIST Facial Recognition Vendor Test report, and (ii) minimal performance variations across demographics associated with race, skin tone, ethnicity, or gender. The Division shall require all approved vendors to annually provide independent assessments and benchmarks offered by NIST to confirm continued compliance with this section.

C. A campus police department shall purchase or deploy may use facial recognition technology unless such purchase or deployment of facial recognition technology is expressly authorized by statute for authorized uses. For purposes of this section, a statute that does not refer to facial recognition technology shall not be construed to provide express authorization. Such statute shall require that any facial recognition technology purchased or deployed by the campus police department be maintained under the exclusive control of such campus police department and that any data contained by such facial recognition technology be kept confidential, not be disseminated or resold, and be accessible only by a search warrant issued pursuant to Chapter 5 (§ 19.2-52 et seq.) of Title 19.2 or an administrative or inspection warrant issued pursuant to law. A match made through facial recognition technology shall not constitute probable cause for an arrest but shall be admissible as exculpatory evidence.

D. A campus police department shall publicly post its policy on use of facial recognition technology before employing such facial recognition technology to investigate a specific criminal incident or citizen welfare situation. A campus police department that uses facial recognition technology may adopt the State Police Model Facial Recognition Technology Policy. If a campus police department uses facial recognition technology but does not adopt the State Police Model Facial Recognition Technology Policy, such department shall develop its own policy within 90 days of publication of the State Police Model Facial Recognition Technology Policy that meets or exceeds the standards set forth in such model policy. Any policy adopted or developed pursuant to this subsection shall be updated annually.

E. Any campus police department that uses facial recognition technology shall maintain records sufficient to facilitate discovery in criminal proceedings, post-conviction proceedings, public reporting, and auditing of compliance with such department's facial recognition technology policies. Such department that uses facial recognition technology shall collect data pertaining to (i) a complete history of each user's queries; (ii) the total number of queries conducted; (iii) the number of queries that resulted in a list of possible candidates; (iv) how many times an examiner offered campus police an investigative lead based on his findings; (v) how many cases were closed due to an investigative lead from facial recognition technology; (vi) what types of criminal offenses are being investigated; (vii) the nature of the image repository being compared or queried; [ and ] (viii) [ demographic information for the individuals whose images are queried; and (ix) ] if applicable, any other entities with which the department shared facial recognition data.

F. Any chief of a campus police department whose agency uses facial recognition technology shall publicly post and annually update a report by April 1 each year to provide information to the public regarding the agency's use of facial recognition technology. The report shall include all data required by clauses (ii) through (viii) of subsection E in addition to (i) all instances of unauthorized access of the facial recognition technology, including any unauthorized access by employees of the campus police department; (ii) vendor information, including the specific algorithms employed; and (iii) if applicable, data or links related to third-party testing of such algorithms, including any reference to variations in demographic performance. If any information or data (a) contains an articulable concern for any person's safety, (b) is otherwise prohibited from public disclosure by federal or state statute, or (c) if disclosed, may compromise sensitive criminal justice information, such information or data may be excluded from public disclosure. Nothing herein shall limit disclosure of data collected pursuant to subsection E when such disclosure is related to a writ of habeas corpus.

For purposes of this subsection, "sensitive criminal justice information" means information related to (1) a particular ongoing criminal investigation or proceeding, (2) the identity of a confidential source, or (3) law-enforcement investigative techniques and procedures.

G. At least 30 days prior to procuring facial recognition technology, a campus police department shall notify in writing the institution of higher education that such department serves of such intended procurement, but such notice shall not be required if such procurement is directed by the governing body.

[ H. Any facial recognition technology operator employed by a campus police department who (i) violates the department's policy for the use of facial recognition technology or (ii) conducts a search for any reason other than an authorized use is guilty of a Class 3 misdemeanor and shall be required to complete training on the department's policy on and authorized uses of facial recognition technology before being reinstated to operate such facial recognition technology. The campus police department shall terminate from employment any facial recognition technology operator who violates clause (i) or (ii) for a second time. ]

§ 52-4.5. Department to establish a State Police Model Facial Recognition Technology Policy.

The Department shall create a model policy regarding the use of facial recognition technology, which shall be known as the State Police Model Facial Recognition Technology Policy. The Department shall publicly post such policy no later than January 1, 2023, and such policy shall be updated annually thereafter and shall include:

1. The nature and frequency of specialized training required for an individual to be authorized by a law-enforcement agency to utilize facial recognition as authorized by this section;

2. The extent to which a law-enforcement agency shall document (i) instances when facial recognition technology is used for authorized purposes and (ii) how long such information is retained;

3. Procedures for the confirmation of any initial findings generated by facial recognition technology by a secondary examiner; and

4. Promulgation of standing orders, policies, or public materials by law-enforcement agencies that use facial recognition technology.

For purposes of this section, "publicly post" shall have the same meaning as defined in § 15.2-1723.2.

[ 2. That the Virginia State Crime Commission (the Crime Commission) shall analyze and report on the usage data of facial recognition technology reported and published by local law-enforcement agencies and campus police departments pursuant to the provisions of this act. The Crime Commission shall include in its report an analysis of and recommendations for (i) improving the use of facial recognition technology as it relates to demographics associated with race, skin tone, ethnicity, and gender; (ii) specialized training, data storage, data retention, and the use of a second examiner pursuant to the State Police Model Facial Recognition Technology Policy established by § 52-4.5 of the Code of Virginia, as created by this act; and (iii) investigations and investigative outcomes related to the accuracy of identification across different demographic groups. The Crime Commission shall submit its report to the Chairmen of the Senate Committee on the Judiciary and the House Committee on Public Safety by November 1, 2025. ]

[ 3. That the provisions of this act shall expire on July 1, 2026. ]

 


HOUSE BILL NO. 1339
AMENDMENT IN THE NATURE OF A SUBSTITUTE
(Proposed by the House Committee on Public Safety
on February 11, 2022)
(Patron Prior to Substitute--Delegate Leftwich)
A BILL to amend and reenact §§ 15.2-1723.2 and 23.1-815.1 of the Code of Virginia and to amend the Code of Virginia by adding a section numbered 52-4.5, relating to facial recognition technology; Department of State Police and authorized uses.

Be it enacted by the General Assembly of Virginia:

1. That §§ 15.2-1723.2 and 23.1-815.1 of the Code of Virginia are amended and reenacted and that the Code of Virginia is amended by adding a section numbered 52-4.5 as follows:

§ 15.2-1723.2. Facial recognition technology; approval.

A. For purposes of this section, "facial:

"Authorized use" means the use of facial recognition technology to (i) help identify an individual when there is a reasonable suspicion the individual has committed, is committing, or is planning the commission of a crime; (ii) help identify a crime victim, including a victim of online sexual abuse material; (iii) help identify a person who may be a missing person or witness to criminal activity; (iv) help identify a victim of human trafficking or an individual involved in the trafficking of humans, weapons, drugs, or wildlife; (v) help identify an online recruiter of criminal activity, including but not limited to  human, weapon, drug, and wildlife trafficking; (vi) help a person who is suffering from a mental or physical disability impairing his ability to communicate and be understood; (vii) help identify a deceased person; (viii) help identify a person who is incapacitated or otherwise unable to identify himself; (ix) help identify a person who is reasonably believed to be a danger to himself or others; (x) help identify an individual lawfully detained; (xi) help mitigate an imminent threat to public safety, a significant threat to life, or a threat to national security, including acts of terrorism; (xii) ensure officer safety as part of the vetting of undercover law enforcement; (xiii) determine whether an individual may have unlawfully obtained one or more state driver's licenses, financial instruments, or other official forms of identification using information that is fictitious or associated with a victim of identity theft; or (xiv) help identify a person who an officer reasonably believes is concealing his true identity and about whom the officer has a reasonable suspicion has committed a crime other than concealing his identity.

"Facial recognition technology" means an electronic system or service for enrolling, capturing, extracting, comparing, and matching an individual's geometric facial data to identify individuals in photos, videos, or real time conducting an algorithmic comparison of images of a person's facial features for the purpose of identification. "Facial recognition technology" does not include the use of an automated or semi-automated process to redact a recording in order to protect the privacy of a subject depicted in the recording prior to release or disclosure of the recording outside of the law-enforcement agency if the process does not generate or result in the retention of any biometric data or surveillance information.

"Publicly post" means to post on a website that is maintained by the entity or on any other website on which the entity generally posts information and that is available to the public or that clearly describes how the public may access such data.

"State Police Model Facial Recognition Technology Policy" means the model policy developed and published by the Department of State Police pursuant to § 52-4.5.

B. No Pursuant to § 2.2-1112, the Division of Purchases and Supply (the Division) shall determine the appropriate facial recognition technology for use in accordance with this section. The Division shall not approve any facial recognition technology unless it has been evaluated by the National Institute of Standards and Technology (NIST) as part of the Face Recognition Vendor Test. Any facial recognition technology utilized shall utilize algorithms that have demonstrated (i) an accuracy score of at least 98 percent true positives within one or more datasets relevant to the application in a NIST Facial Recognition Vendor Test report and (ii) minimal performance variations across demographics associated with race, skin tone, ethnicity, or gender. The Division shall require all approved vendors to annually provide independent assessments and benchmarks offered by NIST to confirm continued compliance with this section.

C. A local law-enforcement agency shall purchase or deploy may use facial recognition technology unless such purchase or deployment of facial recognition technology is expressly authorized by statute for authorized uses. For purposes of this section, a statute that does not refer to facial recognition technology shall not be construed to provide express authorization. Such statute shall require that any facial recognition technology purchased or deployed by the local law-enforcement agency be maintained under the exclusive control of such local law-enforcement agency and that any data contained by such facial recognition technology be kept confidential, not be disseminated or resold, and be accessible only by a search warrant issued pursuant to Chapter 5 (§ 19.2-52 et seq.) of Title 19.2 or an administrative or inspection warrant issued pursuant to law. A match made through facial recognition technology shall not constitute probable cause for an arrest but shall be admissible as exculpatory evidence.

C. D. A local law-enforcement agency shall publicly post and annually update its policy regarding the use of facial recognition technology before employing such facial recognition technology to investigate a specific criminal incident or citizen welfare situation. A local law-enforcement agency that uses facial recognition technology may adopt the State Police Model Facial Recognition Technology Policy. If a local law-enforcement agency uses facial recognition technology but does not adopt such model policy, such agency shall develop its own policy within 90 days of publication of the State Police Model Facial Recognition Technology Policy that meets or exceeds the standards set forth in such model policy.

E. Any local law-enforcement agency that uses facial recognition technology shall maintain records sufficient to facilitate discovery in criminal proceedings, post-conviction proceedings, public reporting, and auditing of compliance with such agency's facial recognition technology policies. Such agency shall collect data pertaining to (i) a complete history of each user's queries; (ii) the total number of queries conducted; (iii) the number of queries that resulted in a list of possible candidates; (iv) how many times an examiner offered law enforcement an investigative lead based on his findings; (v) how many cases were closed due to an investigative lead from facial recognition technology; (vi) what types of criminal offenses are being investigated; (vii) the nature of the image repository being compared or queried; and (viii) if applicable, any other entities with which the agency shared facial recognition data.

F. Any chief of police whose agency uses facial recognition technology shall publicly post and annually update a report by April 1 each year to provide information to the public regarding the agency's use of facial recognition technology. The report shall include all data required by clauses (ii) through (viii) of subsection E in addition to (i) all instances of unauthorized access of the facial recognition technology, including any unauthorized access by employees of the agency; (ii) vendor information, including the specific algorithms employed; and (iii) if applicable, data or links related to third-party testing of such algorithms, including any reference to variations in demographic performance. If any information or data (a) contains an articulable concern for any person's safety, (b) is otherwise prohibited from public disclosure by federal or state statute, or (c) if disclosed, may compromise sensitive criminal justice information, such information or data may be excluded from public disclosure. Nothing herein shall limit disclosure of data collected pursuant to subsection E when such disclosure is related to a writ of habeas corpus.

For purposes of this subsection, "sensitive criminal justice information" means information related to (1) a particular ongoing criminal investigation or proceeding, (2) the identity of a confidential source, or (3) law-enforcement investigative techniques and procedures.

G. At least 30 days prior to procuring facial recognition technology, a local law-enforcement agency shall notify in writing the governing body of the locality that such agency serves of such intended procurement, but such notice shall not be required if such procurement is directed by the governing body.

H. Nothing in this section shall apply to commercial air service airports.

§ 23.1-815.1. Facial recognition technology; approval.

A. For purposes of this subsection, "facial section:

"Authorized use" means the use of facial recognition technology to (i) help identify an individual when there is a reasonable suspicion the individual has committed, is committing, or is planning the commission of a crime; (ii) help identify a crime victim, including a victim of online sexual abuse material; (iii) help identify a person who may be a missing person or witness to criminal activity; (iv) help identify a victim of human trafficking or an individual involved in the trafficking of humans, weapons, drugs, or wildlife; (v) help identify an online recruiter of criminal activity, including but not limited to human, weapon, drug, and wildlife trafficking; (vi) help a person who is suffering from a mental or physical disability impairing the person's ability to communicate and be understood; (vii) help identify a deceased person; (viii) help identify a person who is incapacitated or otherwise unable to identify himself; (ix) help identify a person who is reasonably believed to be a danger to himself or others; (x) help identify an individual lawfully detained; (xi) help mitigate an imminent threat to public safety, a significant threat to life, or a threat to national security, including acts of terrorism; (xii) ensure officer safety as part of the vetting of undercover law enforcement; (xiii) determine whether an individual may have unlawfully obtained one or more state driver's licenses, financial instruments, or other official forms of identification using information that is fictitious or associated with a victim of identity theft; or (xiv) help identify a person who an officer reasonably believes is concealing his true identity and about whom the officer has a reasonable suspicion has committed a crime other than concealing his identity.

"Facial recognition technology" means an electronic system or service for enrolling, capturing, extracting, comparing, and matching an individual's geometric facial data to identify individuals in photos, videos, or real time conducting an algorithmic comparison of images of a person's facial features for the purpose of identification. "Facial recognition technology" does not include the use of an automated or semi-automated process to redact a recording in order to protect the privacy of a subject depicted in the recording prior to release or disclosure of the recording outside of the law-enforcement agency if the process does not generate or result in the retention of any biometric data or surveillance information.

"Publicly post" means to post on a website that is maintained by the entity or on any other website on which the entity generally posts information and that is available to the public or that clearly describes how the public may access such data.

"State Police Model Facial Recognition Technology Policy" means the model policy developed and published by the Department of State Police pursuant to § 52-4.5.

B. No Pursuant to § 2.2-1112, the Division of Purchases and Supply (the Division) shall determine the appropriate facial recognition technology for use in accordance with this section. The Division shall not approve any facial recognition technology unless it has been evaluated by the National Institute of Standards and Technology (NIST) as part of the Face Recognition Vendor Test. Any facial recognition technology utilized shall utilize algorithms that have demonstrated (i) an accuracy score of at least 98 percent true positives within one or more datasets relevant to the application in a NIST Facial Recognition Vendor Test report, and (ii) minimal performance variations across demographics associated with race, skin tone, ethnicity, or gender. The Division shall require all approved vendors to annually provide independent assessments and benchmarks offered by NIST to confirm continued compliance with this section.

C. A campus police department shall purchase or deploy may use facial recognition technology unless such purchase or deployment of facial recognition technology is expressly authorized by statute for authorized uses. For purposes of this section, a statute that does not refer to facial recognition technology shall not be construed to provide express authorization. Such statute shall require that any facial recognition technology purchased or deployed by the campus police department be maintained under the exclusive control of such campus police department and that any data contained by such facial recognition technology be kept confidential, not be disseminated or resold, and be accessible only by a search warrant issued pursuant to Chapter 5 (§ 19.2-52 et seq.) of Title 19.2 or an administrative or inspection warrant issued pursuant to law. A match made through facial recognition technology shall not constitute probable cause for an arrest but shall be admissible as exculpatory evidence.

D. A campus police department shall publicly post its policy on use of facial recognition technology before employing such facial recognition technology to investigate a specific criminal incident or citizen welfare situation. A campus police department that uses facial recognition technology may adopt the State Police Model Facial Recognition Technology Policy. If a campus police department uses facial recognition technology but does not adopt the State Police Model Facial Recognition Technology Policy, such department shall develop its own policy within 90 days of publication of the State Police Model Facial Recognition Technology Policy that meets or exceeds the standards set forth in such model policy. Any policy adopted or developed pursuant to this subsection shall be updated annually.

E. Any campus police department that uses facial recognition technology shall maintain records sufficient to facilitate discovery in criminal proceedings, post-conviction proceedings, public reporting, and auditing of compliance with such department's facial recognition technology policies. Such department that uses facial recognition technology shall collect data pertaining to (i) a complete history of each user's queries; (ii) the total number of queries conducted; (iii) the number of queries that resulted in a list of possible candidates; (iv) how many times an examiner offered campus police an investigative lead based on his findings; (v) how many cases were closed due to an investigative lead from facial recognition technology; (vi) what types of criminal offenses are being investigated; (vii) the nature of the image repository being compared or queried; and (viii) if applicable, any other entities with which the department shared facial recognition data.

F. Any chief of a campus police department whose agency uses facial recognition technology shall publicly post and annually update a report by April 1 each year to provide information to the public regarding the agency's use of facial recognition technology. The report shall include all data required by clauses (ii) through (viii) of subsection E in addition to (i) all instances of unauthorized access of the facial recognition technology, including any unauthorized access by employees of the campus police department; (ii) vendor information, including the specific algorithms employed; and (iii) if applicable, data or links related to third-party testing of such algorithms, including any reference to variations in demographic performance. If any information or data (a) contains an articulable concern for any person's safety, (b) is otherwise prohibited from public disclosure by federal or state statute, or (c) if disclosed, may compromise sensitive criminal justice information, such information or data may be excluded from public disclosure. Nothing herein shall limit disclosure of data collected pursuant to subsection E when such disclosure is related to a writ of habeas corpus.

For purposes of this subsection, "sensitive criminal justice information" means information related to (1) a particular ongoing criminal investigation or proceeding, (2) the identity of a confidential source, or (3) law-enforcement investigative techniques and procedures.

G. At least 30 days prior to procuring facial recognition technology, a campus police department shall notify in writing the institution of higher education that such department serves of such intended procurement, but such notice shall not be required if such procurement is directed by the governing body.

§ 52-4.5. Department to establish a State Police Model Facial Recognition Technology Policy.

The Department shall create a model policy regarding the use of facial recognition technology, which shall be known as the State Police Model Facial Recognition Technology Policy. The Department shall publicly post such policy no later than January 1, 2023, and such policy shall be updated annually thereafter and shall include:

1. The nature and frequency of specialized training required for an individual to be authorized by a law-enforcement agency to utilize facial recognition as authorized by this section;

2. The extent to which a law-enforcement agency shall document (i) instances when facial recognition technology is used for authorized purposes and (ii) how long such information is retained;

3. Procedures for the confirmation of any initial findings generated by facial recognition technology by a secondary examiner; and

4. Promulgation of standing orders, policies, or public materials by law-enforcement agencies that use facial recognition technology.

For purposes of this section, "publicly post" shall have the same meaning as defined in § 15.2-1723.2.

HOUSE BILL NO. 1339

Offered January 21, 2022
A BILL to amend and reenact §§ 15.2-1723.2 and 23.1-815.1 of the Code of Virginia, relating to facial recognition technology; local law enforcement; campus police.
Patron-- Leftwich

Committee Referral Pending

Be it enacted by the General Assembly of Virginia:

1. That §§ 15.2-1723.2 and 23.1-815.1 of the Code of Virginia are amended and reenacted as follows:

§ 15.2-1723.2. Facial recognition technology; approval.

A. For purposes of this section, "facial recognition technology" means an electronic system for enrolling, capturing, extracting, comparing, and matching an individual's geometric facial data to identify individuals in photos, videos, or real time conducting an algorithmic comparison of images of an individual's facial features for the purposes of verification or identification. "Facial recognition technology" does not include the use of an automated or semi-automated process to redact a recording in order to protect the privacy of a subject depicted in the recording prior to release or disclosure of the recording outside of the law-enforcement agency if the process does not generate or result in the retention of any biometric data or surveillance information.

B. No local law-enforcement agency shall purchase or deploy facial recognition technology unless such purchase or deployment of facial recognition technology is expressly authorized by statute. For purposes of this section, a statute that does not refer to facial recognition technology shall not be construed to provide express authorization. Such statute shall require that any facial recognition technology purchased or deployed by the local law-enforcement agency be maintained under the exclusive control of such local law-enforcement agency and that any data contained by such facial recognition technology be kept confidential, not be disseminated or resold, and be accessible only by a search warrant issued pursuant to Chapter 5 (§ 19.2-52 et seq.) of Title 19.2 or an administrative or inspection warrant issued pursuant to law.

A local law-enforcement agency may utilize facial recognition technology for criminal investigative and administrative investigative purposes. The following criteria apply to the lawful use of facial recognition technology under this subsection:

1. Any facial recognition technology used shall have been evaluated by the National Institute of Standards and Technology and received an accuracy score of 98 percent or better for true positives across all demographic groups in the Face Recognition Vendor Test.

2. The match of an image by facial recognition technology shall not constitute probable cause for arrest of an individual. The match of an image by facial recognition technology shall be permitted as exculpatory evidence.

3. A local law-enforcement agency may use facial recognition technology to search against any publicly available or lawfully acquired image or image database.

C. No later than January 1, 2023, the Department of State Police, in consultation with stakeholder organizations, shall develop and publicly post a model policy regarding the investigative use of facial recognition technology. Such model policy shall be updated at least annually and address the following subjects:

1. Training: the nature and frequency of specialized training required to authorize Virginia law-enforcement agency personnel to utilize facial recognition technology for criminal investigative and administrative investigative purposes.

2. Transparency: the extent to which a Virginia law-enforcement agency shall document instances when facial recognition technology is utilized for criminal investigative and administrative investigative purposes and how long such documentation must be retained.

3. Responsibility: whether the initial findings generated by facial recognition technology for criminal investigative and administrative investigative purposes must be confirmed by a secondary examiner.

D. A local law-enforcement agency shall publicly post the policies that will govern its use prior to utilizing facial recognition technology for criminal investigative and administrative investigative purposes. A local law-enforcement agency may adopt the model policy developed by the Department of State Police pursuant to subsection C or develop its own policy that addresses the subjects identified in subsection C. Any policy developed and adopted by a local law-enforcement agency shall be updated at least annually.

E. A local law-enforcement agency utilizing facial recognition technology shall maintain records sufficient to facilitate public reporting and auditing of compliance with the agency's facial recognition policies. Specifically, any law-enforcement agency utilizing facial recognition technology shall collect data and information pertaining to (i) the total number of system queries conducted, (ii) the number of queries that resulted in the facial recognition system offering potential candidates, (iii) the number of times an examiner offered an investigative lead for follow-up based on his findings, (iv) the number of cases closed by arrest where a facial recognition investigative lead was a contributing factor, (v) the suspected criminal offenses being investigated, (vi) the image repository searched, and (vii) records detailing any other entities that received facial recognition data shared by the agency.

F. The head of any local law-enforcement agency utilizing facial recognition technology shall be responsible for publishing an annual report by April 1 of the following year, in print or on a publicly accessible website, to provide information to the community regarding the agency's use of facial recognition technology. The report shall include data required by subsection E. Exceptions to public disclosure are only authorized for specific information if there is an articulable concern for any person's safety, if information is otherwise prohibited from public disclosure by federal or state statute, or if sensitive criminal justice information may be compromised as a result of the disclosure. Any data breaches or unauthorized access of the facial recognition system, including by agency employees, shall be disclosed in the report. Additionally, vendor information, to include the specific algorithms utilized shall be included in the report. Data or links to third-party testing of algorithms in use shall be provided, to include any reference to demographic performance variation.

G. No local government may prohibit or further restrict the use of facial recognition technology by local law-enforcement agencies.

C. H. Nothing in this section shall apply to commercial air service airports.

§ 23.1-815.1. Facial recognition technology; approval.

A. For purposes of this subsection, "facial recognition technology" means an electronic system for enrolling, capturing, extracting, comparing, and matching an individual's geometric facial data to identify individuals in photos, videos, or real time conducting an algorithmic comparison of images of an individual's facial features for the purposes of verification or identification. "Facial recognition technology" does not include the use of an automated or semi-automated process to redact a recording in order to protect the privacy of a subject depicted in the recording prior to release or disclosure of the recording outside of the law-enforcement agency if the process does not generate or result in the retention of any biometric data or surveillance information.

B. No campus police department shall purchase or deploy facial recognition technology unless such purchase or deployment of facial recognition technology is expressly authorized by statute. For purposes of this section, a statute that does not refer to facial recognition technology shall not be construed to provide express authorization. Such statute shall require that any facial recognition technology purchased or deployed by the campus police department be maintained under the exclusive control of such campus police department and that any data contained by such facial recognition technology be kept confidential, not be disseminated or resold, and be accessible only by a search warrant issued pursuant to Chapter 5 (§ 19.2-52 et seq.) of Title 19.2 or an administrative or inspection warrant issued pursuant to law.

A campus police department may utilize facial recognition technology for criminal investigative and administrative investigative purposes. The following criteria apply to the lawful use of facial recognition technology under this subsection:

1. Any facial recognition technology used shall have been evaluated by the National Institute of Standards and Technology and received an accuracy score of 98 percent or better for true positives across all demographic groups in the Face Recognition Vendor Test.

2. The match of an image by facial recognition technology shall not constitute probable cause for arrest of an individual. The match of an image by facial recognition technology shall be permitted as exculpatory evidence.

4. A campus police department may use facial recognition technology to search against any publicly available or lawfully acquired image or image database.

C. A campus police department shall publicly post the policies that will govern its use prior to utilizing facial recognition technology for criminal investigative and administrative investigative purposes. A campus police department may adopt the model policy developed by the Department of State Police pursuant to Chapter 17 (§ 15.2-1723.2 et seq.) of Title 15.2 or develop its own policy that addresses the subjects identified in that section. Any policy developed and adopted by a campus police department shall be updated at least annually.

D. A campus police department utilizing facial recognition technology shall maintain records sufficient to facilitate public reporting and auditing of compliance with the agency's facial recognition policies. Specifically, any campus police department utilizing facial recognition technology shall collect data and information pertaining to (i) the total number of system queries conducted; (ii) the number of queries that resulted in the facial recognition system offering potential candidates; (iii) the number of times an examiner offered an investigative lead for follow-up based on his findings; (iv) the number of cases closed by arrest where a facial recognition investigative lead was a contributing factor; (v) the suspected criminal offenses being investigated; (vi) the image repository searched; and (vii) records detailing any other entities that received facial recognition data shared by the department.

E. The head of any campus police department utilizing facial recognition technology shall be responsible for publishing an annual report by April 1 of the following year, in print or on a publicly accessible website, to provide information to the community regarding the department's use of facial recognition. The report shall include data required by subsection E. Exceptions to public disclosure are only authorized for specific information if there is an articulable concern for any person's safety, if information is otherwise prohibited from public disclosure by federal or state statute, or if sensitive criminal justice information may be compromised as a result of the disclosure. Any data breaches or unauthorized access of the facial recognition system, including by agency employees, shall be disclosed in the report. Additionally, vendor information, to include the specific algorithms utilized shall be included in the report. Data or links to third-party testing of algorithms in use shall be provided, to include any reference to demographic performance variation.

F. No local government may prohibit or further restrict the use of facial recognition technology by campus police departments.