Restrictions on biometrics by New Jersey agencies, police banned under proposed legislation

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A bill introduced this week in the New Jersey State Senate would ban New Jersey government agencies, law enforcement, and officials of the state, from using facial technology recognition and other remote biometric recognition unless certain requirements were met.

Referred to the State Assembly Science, Innovation, and Technology Committee, where the bill must be approved by a majority vote before advancing through the legislative process, the legislation was introduced by State Democratic Sen. Nia Gill, a liberal lawmaker who was elected in 2002 and served as Senate President Pro Tempore from 2010 to 2017.

Her bill, S4216, would “specifically prohibit acquisitioning, possessing, accessing, or using a biometric surveillance system, or the information derived from a biometric surveillance system, operated by another entity unless certain conditions are met,” a released description of the bill read.

A companion bill, A5969, was introduced Monday by State Assemblyman Dan Benson (D) and referred to the Assembly Science, Innovation, and Technology Committee.

Under Gill’s proposed bill, any state governmental official found to have violated the provisions of the law “may be” required to be retrained, suspended, or terminated “subject to due process requirements,” the bill would require.

Under the bill, the certain allowable conditions to be met before any state government agency or law enforcement office could deploy use facial technology recognition, the state body wanting to do so would have to “specifically identify those entities permitted to use the biometric surveillance system and for what purpose,” according to the description of the bill.

In addition standards would be required to be “promulgating … for the use and management of the information, including data retention, sharing, access, and audit trails; developing auditing practices to ensure the accuracy of biometric surveillance system technologies, standards for minimum accuracy rates, and accuracy rates by gender, skin color, and age; instituting rigorous protections for due process, privacy, free speech and association, and racial, gender, and religious equity; and establishing mechanisms to ensure compliance.”

Biometric information obtained in violation of the bill’s provision would not “be admissible in a criminal, civil, administrative, or other proceeding, except in a judicial proceeding alleging a violation of the bill.”

Gill’s legislation would further authorize “a person to institute proceedings for injunctive or declaratory relief for a violation of the bill’s provisions,” and would be “entitled to recover actual damages, as well as additional damages of $100 for each violation, or $1,000, whichever is greater.”

Under the bill, the costs and reasonable attorneys’ fees would be awarded to a prevailing plaintiff.”

The bill states: “Facial recognition technology historically has been less accurate in identifying the faces of women, young people, and dark skinned people and these inaccuracies lead to harmful ‘false positive’ identifications.” It also states that “many of the databases to which facial recognition technology is applied are plagued by racial disparities and other biases, which generate copycat biases in facial recognition data.”

Commenting on the bill, The Tenth Amendment Center, a privacy rights watchdog organization, said, “While S4126 would not end the use of facial recognition technology in New Jersey, it would create a layer of oversight and transparency, and would be an improvement over the status quo, which is unlimited use of biometric surveillance with no restrictions.”

The bill further asserted that “the public use of biometric surveillance systems can chill the exercise of constitutionally protected free speech and association,” and that “few and speculative benefits of using biometric surveillance systems are greatly outweighed by their substantial harms.”

Last week U.S. Senators Chris Coons (D-Del.) and Mike Lee (R-Utah) introduced their bipartisan bill, The Facial Recognition Technology Warrant Act of 2019, which would require federal law enforcement to obtain a court order before using facial recognition technology to conduct targeted ongoing public surveillance.

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