House Bill Analysis - HB 2856, Innovation, Technology & Economic Development Committee
Summary
A House Bill Analysis from the Washington State House of Representatives Office of Program Research for the Innovation, Technology & Economic Development Committee, on HB 2856, concerning a moratorium on facial recognition technology. It lists Representatives Entenman, Morgan and Santos as sponsors and a hearing date of 1/31/20. The brief summary states that the bill prohibits the use of facial recognition technology by state and local government agencies until July 1, 2023, and creates a joint legislative task force on facial recognition. The analysis states that the task force must submit a report of its findings and recommendations to the Governor and the appropriate committees of the Legislature by September 30, 2021.
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“House Bill Analysis - HB 2856, Innovation, Technology & Economic Development Committee.”
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Washington State BILL
House of Representatives
Office of Program Research ANALYSIS
Innovation, Technology & Economic
Development Committee
HB 2856
Brief Description: Concerning a moratorium on facial recognition technology.
Sponsors: Representatives Entenman, Morgan and Santos.
Brief Summary of Bill
Prohibits the use of facial recognition technology by state and local government
agencies until July 1, 2023.
Prohibits the installation or operation of any equipment that incorporates facial
recognition in places of public accommodation until July 1, 2023.
Creates a joint legislative task force on facial recognition to review existing research,
document potential threats, and provide recommendations regarding appropriate
regulation of facial recognition.
Hearing Date: 1/31/20
Staff: Yelena Baker (786-7301).
Background:
Facial Recognition.
Facial recognition is one of several biometric technologies which identify or verify individuals
by measuring and analyzing their physiological or behavioral characteristics. Facial recognition
generally works by detecting a human face, extracting it from the rest of the scene, and
measuring the numerous distinguishable landmarks that make up facial features, such as the
distance between the eyes or the shape of the cheekbones. A numerical code called a faceprint or
a facial template is then created to represent the measured face in a database.
In a process known as "one-to-one" matching, facial recognition can confirm that a photo
matches a different photo of the same person in a database. "One-to-one" matching is commonly
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This analysis was prepared by non-partisan legislative staff for the use of legislative
members in their deliberations. This analysis is not a part of the legislation nor does it
constitute a statement of legislative intent.
House Bill Analysis -1- HB 2856
used for verification purposes, such as unlocking a smartphone or checking a passport. A "one-
to-many" matching process compares a photo of an unknown person to a database of known
people and may be used to identify a person of interest.
Facial recognition systems can generate two types of errors: false positives (generating an
incorrect match) or false negatives (not generating a match where one exists). The more similar
the environments in which the images are compared, the better a facial recognition system will
perform, particularly in a "one-to-many" matching process.
Facial recognition is used in a variety of consumer and business applications, including safety
and security, secure access, marketing, and customer service. In the public sphere it is more
commonly used for law enforcement and security purposes. Additionally, many states, including
Washington, use facial recognition matching systems to verify the identity of an applicant for a
driver's license or identification card to determine whether the person has been issued a driver's
license or identification card under a different name.
Regulation of Biometric Identifiers.
In 2017, two Washington laws regulating the collection and use of biometric identifiers were
enacted: one applies to state agencies and the other to any person or business that enrolls
biometric identifiers in a database for commercial purposes.
A state agency is prohibited from obtaining a biometric identifier without providing notice that
clearly specifies the purpose and use of the identifier and obtaining consent specific to the terms
of the notice. A state agency that obtains biometric identifiers must minimize the review and
retention of biometric identifiers and establish security policies to ensure the integrity and
confidentiality of biometric identifiers. A state agency may only use a biometric identifier
consistent with the terms of the notice and consent and is prohibited from selling a biometric
identifier. Biometric identifiers collected by a state agency may not be disclosed under the
Public Records Act.
A person or business may not enroll a biometric identifier in a database for a commercial
purpose, without providing notice, obtaining consent, or providing a mechanism to prevent
subsequent use. A biometric identifier enrolled or obtained for a commercial purpose may not be
used or disclosed in a way inconsistent with the original terms under which it was provided,
unless new consent is obtained. The sale, lease, or disclosure of a biometric identifier for a
commercial purpose, without the individual's consent, is prohibited except in certain
circumstances, such as when it is necessary in providing a product or service sought by the
individual or required under a court order. A person or business in possession of biometric
identifiers enrolled for a commercial purpose must guard against unauthorized access and adhere
to retention limitations.
The definition of "biometric identifier" in both statutes includes data based on an individual's
biological characteristics, such as a fingerprint, voiceprint, or scan of hand or face geometry, and
excludes data from photographs.
Washington Law Against Discrimination.
The Washington Law Against Discrimination prohibits discrimination based on protected
characteristics in places of public accommodation. Protected characteristics include a person's
House Bill Analysis -2- HB 2856
race, religion, national origin, sex or sexual orientation, honorably discharged veteran or military
status, the presence of any sensory, mental, or physical disability or the use of a trained dog
guide or service animal. A place of public accommodation means any place of public resort,
accommodation, assemblage, or amusement. Places of public accommodations generally include
restaurants, hotels, stores, shopping malls, movie theaters, concert halls, arenas, parks, fairs,
arcades, libraries, schools, government offices, and hospitals.
Consumer Protection Act.
Under the state's Consumer Protection Act (CPA), a variety of business practices are declared
unlawful. These practices include engaging in unfair methods of competition and unfair or
deceptive acts or practices in the conduct of commerce and monopolizing trade or commerce. A
person injured by a violation of the CPA may bring an action for injunctive relief and the
recovery of actual damages and reasonable attorneys' fees. Recovery may also include triple
damages, in some circumstances. In addition, the CPA allows the Attorney General to bring a
CPA action in the name of the state or on behalf of persons residing in the state. An action by the
Attorney General may seek to prevent or restrain violations of the act and may seek restoration
for persons injured by violation of the CPA.
Summary of Bill:
Government Use of Facial Recognition.
Until July 1, 2023, state and local government agencies are prohibited from obtaining, retaining,
requesting, accessing, or using any facial recognition technology or any information obtained
from or by use of facial recognition technology. The moratorium on government use of facial
recognition does not apply to the use of a facial recognition matching system by the Department
of Licensing.
Information obtained from or by use facial recognition may not be received as evidence in any
trial or other proceeding before a court or other authority subject to the jurisdiction of
Washington state.
Inadvertent or unintentional receipt, access, or use of facial recognition information is not a
violation of the moratorium if:
the information was not requested or solicited by an agency; and
the information is permanently deleted upon discovery.
A person injured by the violations of these provisions to institute proceedings for injunctive
relief, declaratory relief, a writ of mandate, or an action to recover actual damages.
Facial Recognition in Places of Public Accommodation.
Until July 1, 2023, it is prohibited to operate or install any equipment incorporating facial
recognition in places of public accommodation, as defined in the Washington Law Against
Discrimination.
Violations of these provisions are enforceable under the Consumer Protection Act and subject to
civil penalties and statutory damages.
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Joint Legislative Task Force on Facial Recognition.
A joint legislative task force on facial recognition technology is established to:
review existing research on the accuracy and efficacy of facial recognition technology;
document the potential threats posed to civil liberties, privacy, and other potential harm;
and
provide recommendations regarding appropriate regulation of facial recognition
technology.
The task force is composed of:
four legislative members;
fifteen representatives from advocacy organization that represent consumers or
communities historically impacted by surveillance technologies;
one member of law enforcement;
one representative from a company that deploys facial recognition in physical premises
open to public;
one representative from a company that develops and provides facial recognition
services; and
two representatives from universities or research institutions who are experts in facial
recognition or technology ethics, or both.
By September 30, 2021, the task force must submit a report of its findings and recommendations
to the Governor and the appropriate committees of the Legislature.
Appropriation: None.
Fiscal Note: Available.
Effective Date: The bill takes effect 90 days after adjournment of the session in which the bill is
passed.
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