WHAT THIS BILL REGULATES · 5 REQUIREMENT TYPES
How Is This Bill Enforced
Verbatim statutory text on the left; plain-language analysis and a per-section checklist on the right. Numbered markers cross-link to the matching checklist row.
(a) As used in this section, the following words shall, unless the context clearly requires otherwise, have the following meanings: "Biometric surveillance technologyBiometric surveillance technology"Biometric surveillance technology", any computer software that performs facial recognition or other remote biometric recognition.Mass. Gen. Laws ch. 6, § 220(a)", any computer software that performs facial recognitionFacial recognition"Facial recognition", an automated or semi-automated process that assists in identifying or verifying an individual or analyzing or capturing information about an individual based on the physical characteristics of an individual's face, head or body, or that uses characteristics of an individual's face, head or body to derive information about the associations, activities or location of an individual; provided, however, that "facial recognition" shall not include the use of search terms to sort images in a database.Mass. Gen. Laws ch. 6, § 220(a) or other remote biometric recognitionOther remote biometric recognition"Other remote biometric recognition", an automated or semi-automated process that assists in identifying or verifying an individual or analyzing or capturing information about an individual based on an individual's gait, voice or other biometric characteristic or that uses such characteristics to derive information about the associations, activities or location of an individual; provided, however, that "other remote biometric recognition" shall not include the identification or verification of an individual using deoxyribonucleic acid, fingerprints, palm prints or other information derived from physical contact.Mass. Gen. Laws ch. 6, § 220(a). "Facial recognitionFacial recognition"Facial recognition", an automated or semi-automated process that assists in identifying or verifying an individual or analyzing or capturing information about an individual based on the physical characteristics of an individual's face, head or body, or that uses characteristics of an individual's face, head or body to derive information about the associations, activities or location of an individual; provided, however, that "facial recognition" shall not include the use of search terms to sort images in a database.Mass. Gen. Laws ch. 6, § 220(a)", an automated or semi-automated process that assists in identifying or verifying an individual or analyzing or capturing information about an individual based on the physical characteristics of an individual's face, head or body, or that uses characteristics of an individual's face, head or body to derive information about the associations, activities or location of an individual; provided, however, that "facial recognitionFacial recognition"Facial recognition", an automated or semi-automated process that assists in identifying or verifying an individual or analyzing or capturing information about an individual based on the physical characteristics of an individual's face, head or body, or that uses characteristics of an individual's face, head or body to derive information about the associations, activities or location of an individual; provided, however, that "facial recognition" shall not include the use of search terms to sort images in a database.Mass. Gen. Laws ch. 6, § 220(a)" shall not include the use of search terms to sort images in a database. "Facial recognition searchFacial recognition search"Facial recognition search", the use of facial recognition to analyze an image.Mass. Gen. Laws ch. 6, § 220(a)", the use of facial recognitionFacial recognition"Facial recognition", an automated or semi-automated process that assists in identifying or verifying an individual or analyzing or capturing information about an individual based on the physical characteristics of an individual's face, head or body, or that uses characteristics of an individual's face, head or body to derive information about the associations, activities or location of an individual; provided, however, that "facial recognition" shall not include the use of search terms to sort images in a database.Mass. Gen. Laws ch. 6, § 220(a) to analyze an image. "Law enforcement agencyLaw enforcement agency"Law enforcement agency", as defined in section 1 of chapter 6E.Mass. Gen. Laws ch. 6, § 220(a)", as defined in section 1 of chapter 6E. "Law enforcement officerLaw enforcement officer"Law enforcement officer" or "officer", as defined in section 1 of chapter 6E.Mass. Gen. Laws ch. 6, § 220(a)" or "officer", as defined in section 1 of chapter 6E. "Other remote biometric recognitionOther remote biometric recognition"Other remote biometric recognition", an automated or semi-automated process that assists in identifying or verifying an individual or analyzing or capturing information about an individual based on an individual's gait, voice or other biometric characteristic or that uses such characteristics to derive information about the associations, activities or location of an individual; provided, however, that "other remote biometric recognition" shall not include the identification or verification of an individual using deoxyribonucleic acid, fingerprints, palm prints or other information derived from physical contact.Mass. Gen. Laws ch. 6, § 220(a)", an automated or semi-automated process that assists in identifying or verifying an individual or analyzing or capturing information about an individual based on an individual's gait, voice or other biometric characteristic or that uses such characteristics to derive information about the associations, activities or location of an individual; provided, however, that "other remote biometric recognitionOther remote biometric recognition"Other remote biometric recognition", an automated or semi-automated process that assists in identifying or verifying an individual or analyzing or capturing information about an individual based on an individual's gait, voice or other biometric characteristic or that uses such characteristics to derive information about the associations, activities or location of an individual; provided, however, that "other remote biometric recognition" shall not include the identification or verification of an individual using deoxyribonucleic acid, fingerprints, palm prints or other information derived from physical contact.Mass. Gen. Laws ch. 6, § 220(a)" shall not include the identification or verification of an individual using deoxyribonucleic acid, fingerprints, palm prints or other information derived from physical contact. "Public agencyPublic agency"Public agency", any: (i) agency, executive office, department, board, commission, bureau, division or authority of the commonwealth; (ii) political subdivision thereof; or (iii) authority established by the general court to serve a public purpose.Mass. Gen. Laws ch. 6, § 220(a)", any: (i) agency, executive office, department, board, commission, bureau, division or authority of the commonwealth; (ii) political subdivision thereof; or (iii) authority established by the general court to serve a public purpose. "Public officialPublic official"Public official", any officer, employee, agent, contractor or subcontractor of any public agency.Mass. Gen. Laws ch. 6, § 220(a)", any officer, employee, agent, contractor or subcontractor of any public agencyPublic agency"Public agency", any: (i) agency, executive office, department, board, commission, bureau, division or authority of the commonwealth; (ii) political subdivision thereof; or (iii) authority established by the general court to serve a public purpose.Mass. Gen. Laws ch. 6, § 220(a).
Subsection (a) establishes the definitions that govern the entire section. Key terms include biometric surveillance technology (broadly defined as any software performing facial recognition or other remote biometric recognition), facial recognition (covering automated identification, verification, and derivation of information from physical characteristics of the face, head, or body), and other remote biometric recognition (extending to gait, voice, and other biometric characteristics but excluding DNA, fingerprints, palm prints, and physical-contact-derived data). The definitions also establish the scope of regulated entities: law enforcement agency, public agency (covering all commonwealth agencies, political subdivisions, and legislative authorities), and public official (including contractors and subcontractors).
(b) 1 Absent express authorization in a general or special law to the contrary, it shall be unlawful for a law enforcement agencyLaw enforcement agency"Law enforcement agency", as defined in section 1 of chapter 6E.Mass. Gen. Laws ch. 6, § 220(a) or officer to acquire, possess, access, use, assist with the use of or provide resources for the development or use of any biometric surveillance technologyBiometric surveillance technology"Biometric surveillance technology", any computer software that performs facial recognition or other remote biometric recognition.Mass. Gen. Laws ch. 6, § 220(a), or to enter into a contract with or make a request to a third party, including any federal agency, for the purpose of acquiring, possessing, accessing or using information derived from a biometric surveillance technologyBiometric surveillance technology"Biometric surveillance technology", any computer software that performs facial recognition or other remote biometric recognition.Mass. Gen. Laws ch. 6, § 220(a).
(b) (exclusionary rule) Except in a judicial proceeding alleging a violation of this section, no information obtained in violation of this section shall be admissible in any criminal, civil, administrative or other proceeding.
Subsection (b) imposes a blanket prohibition on law enforcement agencies and officers acquiring, possessing, accessing, using, assisting with, providing resources for, or contracting for biometric surveillance technology or its outputs — unless express authorization exists in a general or special law. The prohibition extends to indirect access through third parties, including federal agencies. An exclusionary rule bars admission of any information obtained in violation of this section in any proceeding other than one alleging a violation of § 220 itself.
(c) 2 The registrar of motor vehicles may acquire, possess, or use facial recognitionFacial recognition"Facial recognition", an automated or semi-automated process that assists in identifying or verifying an individual or analyzing or capturing information about an individual based on the physical characteristics of an individual's face, head or body, or that uses characteristics of an individual's face, head or body to derive information about the associations, activities or location of an individual; provided, however, that "facial recognition" shall not include the use of search terms to sort images in a database.Mass. Gen. Laws ch. 6, § 220(a) technology to investigate and verify an individual's identity when issuing licenses, permits or other documents pursuant to chapter 90, and the department of state police may access or use facial recognitionFacial recognition"Facial recognition", an automated or semi-automated process that assists in identifying or verifying an individual or analyzing or capturing information about an individual based on the physical characteristics of an individual's face, head or body, or that uses characteristics of an individual's face, head or body to derive information about the associations, activities or location of an individual; provided, however, that "facial recognition" shall not include the use of search terms to sort images in a database.Mass. Gen. Laws ch. 6, § 220(a) technology to assist the registrar with this investigation and verification; provided, however, that the registrar shall not otherwise allow any other entity to access or otherwise use its facial recognitionFacial recognition"Facial recognition", an automated or semi-automated process that assists in identifying or verifying an individual or analyzing or capturing information about an individual based on the physical characteristics of an individual's face, head or body, or that uses characteristics of an individual's face, head or body to derive information about the associations, activities or location of an individual; provided, however, that "facial recognition" shall not include the use of search terms to sort images in a database.Mass. Gen. Laws ch. 6, § 220(a) technology except in accordance with subsection (d).
Subsection (c) carves out a narrow exception for the registrar of motor vehicles, permitting acquisition, possession, and use of facial recognition technology solely for identity investigation and verification in connection with issuing licenses, permits, and other documents under chapter 90. The department of state police may assist the registrar in this function. The registrar may not allow any other entity to access its facial recognition technology except through the state police search process authorized in subsection (d).
(d) 3 The department of state police may perform a facial recognition searchFacial recognition search"Facial recognition search", the use of facial recognition to analyze an image.Mass. Gen. Laws ch. 6, § 220(a), or request the federal bureau of investigation to perform such a search, for the following purposes: (1) to assist the registrar of motor vehicles in investigating and verifying an individual's identity pursuant to subsection (c); (2) to execute a warrant duly authorized by a judge based on probable cause that an unidentified or unconfirmed individual in an image has committed a felony; (3) upon reasonable belief that an emergency involving immediate danger of death or serious physical injury to any individual or group of people requires the performance of a facial recognition searchFacial recognition search"Facial recognition search", the use of facial recognition to analyze an image.Mass. Gen. Laws ch. 6, § 220(a) without delay; (4) to identify a deceased person; or (5) on behalf of another law enforcement agencyLaw enforcement agency"Law enforcement agency", as defined in section 1 of chapter 6E.Mass. Gen. Laws ch. 6, § 220(a) or a federal agency, provided that such agency obtained a warrant pursuant to clause (2) or documented in writing the reason for a search requested under clauses (3) or (4).
(d) (operations group and technology restrictions) 4 One facial recognitionFacial recognition"Facial recognition", an automated or semi-automated process that assists in identifying or verifying an individual or analyzing or capturing information about an individual based on the physical characteristics of an individual's face, head or body, or that uses characteristics of an individual's face, head or body to derive information about the associations, activities or location of an individual; provided, however, that "facial recognition" shall not include the use of search terms to sort images in a database.Mass. Gen. Laws ch. 6, § 220(a) operations group within the department shall be charged with receiving and evaluating law enforcement requests for facial recognition searchesFacial recognition search"Facial recognition search", the use of facial recognition to analyze an image.Mass. Gen. Laws ch. 6, § 220(a), performing facial recognition searchesFacial recognition search"Facial recognition search", the use of facial recognition to analyze an image.Mass. Gen. Laws ch. 6, § 220(a), reporting results, and recording relevant data. The department shall only use existing facial recognitionFacial recognition"Facial recognition", an automated or semi-automated process that assists in identifying or verifying an individual or analyzing or capturing information about an individual based on the physical characteristics of an individual's face, head or body, or that uses characteristics of an individual's face, head or body to derive information about the associations, activities or location of an individual; provided, however, that "facial recognition" shall not include the use of search terms to sort images in a database.Mass. Gen. Laws ch. 6, § 220(a) technology used by the registrar of motor vehicles or federal bureau of investigations or facial recognitionFacial recognition"Facial recognition", an automated or semi-automated process that assists in identifying or verifying an individual or analyzing or capturing information about an individual based on the physical characteristics of an individual's face, head or body, or that uses characteristics of an individual's face, head or body to derive information about the associations, activities or location of an individual; provided, however, that "facial recognition" shall not include the use of search terms to sort images in a database.Mass. Gen. Laws ch. 6, § 220(a) technology approved by the executive office of technology services and security, which may only be approved following a public hearing on the proposed software.
(d) (FBI documentation) 5 Any search request made to the federal bureau of investigation under this section shall be documented in writing.
Subsection (d) defines the narrow circumstances under which the department of state police may perform or request facial recognition searches: assisting the RMV, executing a judicial warrant based on probable cause for a felony, responding to emergencies involving immediate danger of death or serious physical injury, identifying a deceased person, or acting on behalf of another law enforcement or federal agency that obtained the requisite warrant or documented the emergency. A centralized facial recognition operations group within the department must handle all search requests, performance, and reporting. The department is limited to existing RMV or FBI facial recognition technology, or technology approved by the executive office of technology services and security following a public hearing. All FBI search requests must be documented in writing.
(e) 6 For any emergency facial recognition searchFacial recognition search"Facial recognition search", the use of facial recognition to analyze an image.Mass. Gen. Laws ch. 6, § 220(a) performed or requested under subsection (d)(3), the law enforcement agencyLaw enforcement agency"Law enforcement agency", as defined in section 1 of chapter 6E.Mass. Gen. Laws ch. 6, § 220(a) shall immediately document the factual basis for its belief that an emergency requires the performance of such a search without delay, and any emergency facial recognition searchFacial recognition search"Facial recognition search", the use of facial recognition to analyze an image.Mass. Gen. Laws ch. 6, § 220(a) shall be narrowly tailored to address the emergency. Not later than 48 hours after the law enforcement agencyLaw enforcement agency"Law enforcement agency", as defined in section 1 of chapter 6E.Mass. Gen. Laws ch. 6, § 220(a) obtains access to the results of a facial recognition searchFacial recognition search"Facial recognition search", the use of facial recognition to analyze an image.Mass. Gen. Laws ch. 6, § 220(a), the agency shall file with the superior court in the relevant jurisdiction a signed, sworn statement made by a supervisory official of a rank designated by the head of the agency setting forth the grounds for the emergency search.
Subsection (e) imposes heightened procedural requirements on emergency facial recognition searches conducted under subsection (d)(3). The law enforcement agency must immediately document the factual basis for its emergency belief, and the search must be narrowly tailored to the emergency. Within 48 hours of receiving search results, the agency must file a signed, sworn statement with the superior court in the relevant jurisdiction, made by a supervisory official of designated rank, setting forth the grounds for the emergency search. This creates judicial oversight for warrantless searches after the fact.
(f) 7 All individuals charged with a crime who were identified using a facial recognition searchFacial recognition search"Facial recognition search", the use of facial recognition to analyze an image.Mass. Gen. Laws ch. 6, § 220(a) under this subsection shall be provided notice that they were subject to such search, pursuant to rule 14 of the rules of criminal procedure. Law enforcement agencies and district attorneys must make readily available to defendants and their attorneys in criminal prosecutions all records and information pertaining to any facial recognition searchesFacial recognition search"Facial recognition search", the use of facial recognition to analyze an image.Mass. Gen. Laws ch. 6, § 220(a) performed or requested during the course of the investigation of the crime or offense that is the object of the criminal prosecution. This information shall include, but not be limited to, the results of the facial recognition searchFacial recognition search"Facial recognition search", the use of facial recognition to analyze an image.Mass. Gen. Laws ch. 6, § 220(a) (including other possible matches identified by the search), as well as records regarding the particular program or algorithm used to conduct the facial recognition searchFacial recognition search"Facial recognition search", the use of facial recognition to analyze an image.Mass. Gen. Laws ch. 6, § 220(a), the accuracy rate of the facial recognitionFacial recognition"Facial recognition", an automated or semi-automated process that assists in identifying or verifying an individual or analyzing or capturing information about an individual based on the physical characteristics of an individual's face, head or body, or that uses characteristics of an individual's face, head or body to derive information about the associations, activities or location of an individual; provided, however, that "facial recognition" shall not include the use of search terms to sort images in a database.Mass. Gen. Laws ch. 6, § 220(a) system, any audit testing of the facial recognitionFacial recognition"Facial recognition", an automated or semi-automated process that assists in identifying or verifying an individual or analyzing or capturing information about an individual based on the physical characteristics of an individual's face, head or body, or that uses characteristics of an individual's face, head or body to derive information about the associations, activities or location of an individual; provided, however, that "facial recognition" shall not include the use of search terms to sort images in a database.Mass. Gen. Laws ch. 6, § 220(a) system, the identity of the individual or individuals who conducted the facial recognition searchFacial recognition search"Facial recognition search", the use of facial recognition to analyze an image.Mass. Gen. Laws ch. 6, § 220(a), training provided to law enforcement officials involved in conducting facial recognition searchesFacial recognition search"Facial recognition search", the use of facial recognition to analyze an image.Mass. Gen. Laws ch. 6, § 220(a), and the process by which the defendant was selected as the most likely match.
Subsection (f) requires that all individuals charged with a crime who were identified via facial recognition search receive notice of that fact, pursuant to Rule 14 of the rules of criminal procedure. Law enforcement agencies and district attorneys must make available to defendants and their attorneys all records pertaining to facial recognition searches conducted during the investigation, including search results, all possible matches identified, the program or algorithm used, accuracy rates, audit testing, the identity and training of the individuals who conducted the search, and the process by which the defendant was selected as the most likely match. This is a comprehensive transparency obligation designed to support meaningful criminal defense challenges to facial recognition evidence.
(g) 8 The department shall document, as a public record, each facial recognition searchFacial recognition search"Facial recognition search", the use of facial recognition to analyze an image.Mass. Gen. Laws ch. 6, § 220(a) request and each facial recognition searchFacial recognition search"Facial recognition search", the use of facial recognition to analyze an image.Mass. Gen. Laws ch. 6, § 220(a) performed pursuant to this section and report this information quarterly to the executive office of public safety and security. Reported information shall include: the date and time of the search or request; the system used for the search; the specific criminal offense or offenses under investigation; the number of matched individuals returned, if any; the name and position of the requesting individual and employing law enforcement agencyLaw enforcement agency"Law enforcement agency", as defined in section 1 of chapter 6E.Mass. Gen. Laws ch. 6, § 220(a); a copy of the warrant or, if no warrant exists, a copy of the written emergency request; and data detailing the individual characteristics included in the facial recognition searchFacial recognition search"Facial recognition search", the use of facial recognition to analyze an image.Mass. Gen. Laws ch. 6, § 220(a) or request, including the presumed race and gender of the person in the probe image(s), as assessed by the officer conducting the search.
Subsection (g) requires the department of state police to document every facial recognition search request and search performed under § 220 as a public record, and to report this information quarterly to the executive office of public safety and security. The reported data must include the date and time of each search, the system used, the specific criminal offenses under investigation, the number of matched individuals returned, the name and position of the requesting individual and their employing law enforcement agency, a copy of the warrant or emergency request, and data detailing the individual characteristics included in the search — specifically including the presumed race and gender of the person in the probe image(s) as assessed by the officer conducting the search.
(h) 9 Annually, not later than March 31, the executive office of public safety and security shall publish on its website the following data for the previous calendar year: (i) the total number of facial recognition searchesFacial recognition search"Facial recognition search", the use of facial recognition to analyze an image.Mass. Gen. Laws ch. 6, § 220(a) performed by the department of state police, disaggregated by law enforcement agencyLaw enforcement agency"Law enforcement agency", as defined in section 1 of chapter 6E.Mass. Gen. Laws ch. 6, § 220(a) or federal agency on whose behalf the search was performed; (ii) the total number of facial recognition searchesFacial recognition search"Facial recognition search", the use of facial recognition to analyze an image.Mass. Gen. Laws ch. 6, § 220(a) requested to be performed by the federal bureau of investigation on behalf of law enforcement agencies, disaggregated by requesting law enforcement agencyLaw enforcement agency"Law enforcement agency", as defined in section 1 of chapter 6E.Mass. Gen. Laws ch. 6, § 220(a). For each category of data and each law enforcement agencyLaw enforcement agency"Law enforcement agency", as defined in section 1 of chapter 6E.Mass. Gen. Laws ch. 6, § 220(a), the published information shall include: the number of searches performed pursuant to a warrant, by alleged offense; the number of searches performed pursuant to an emergency; and the race and gender of the subjects of the searches, as assessed by the officer conducting the search.
Subsection (h) requires the executive office of public safety and security to publish annually on its website, by March 31, aggregated data on law enforcement facial recognition searches for the preceding calendar year. The published data must include total searches by the state police disaggregated by requesting agency, total searches requested of the FBI disaggregated by requesting law enforcement agency, the number of warrant-based vs. emergency-based searches by offense, and the race and gender of search subjects as assessed by the officer.
(i) 10 Each non-law enforcement public agencyPublic agency"Public agency", any: (i) agency, executive office, department, board, commission, bureau, division or authority of the commonwealth; (ii) political subdivision thereof; or (iii) authority established by the general court to serve a public purpose.Mass. Gen. Laws ch. 6, § 220(a) shall document, as a public record, each facial recognition searchFacial recognition search"Facial recognition search", the use of facial recognition to analyze an image.Mass. Gen. Laws ch. 6, § 220(a) requested and each facial recognition searchFacial recognition search"Facial recognition search", the use of facial recognition to analyze an image.Mass. Gen. Laws ch. 6, § 220(a) performed by its public officialsPublic official"Public official", any officer, employee, agent, contractor or subcontractor of any public agency.Mass. Gen. Laws ch. 6, § 220(a) and report this information quarterly to the executive office of public safety and security. Reported information shall include: the date and time of the search or request; the name and position of the requesting individual; the reason for the search or request; the name, position, and employer of the individual who conducted the search; the system used for the search; the number of matched individuals returned, if any; and data detailing the individual characteristics included in the facial recognition searchFacial recognition search"Facial recognition search", the use of facial recognition to analyze an image.Mass. Gen. Laws ch. 6, § 220(a) or request, including the presumed race and gender of the person in the probe image(s), as assessed by the individual conducting the search.
Subsection (i) extends the quarterly documentation and reporting obligation to non-law-enforcement public agencies. Each such agency must document every facial recognition search requested and performed by its public officials as a public record and report quarterly to the executive office of public safety and security. The reported information includes date/time, requester identity, reason for the search, identity and employer of the person who conducted the search, the system used, match counts, and the presumed race and gender of probe image subjects.
(j) 11 Annually, not later than March 31, the executive office of public safety and security shall publish on its website the following data for the previous calendar year: (i) the total number of facial recognition searchesFacial recognition search"Facial recognition search", the use of facial recognition to analyze an image.Mass. Gen. Laws ch. 6, § 220(a) performed by or at the request of non-law enforcement public agencies, disaggregated by the public agencyPublic agency"Public agency", any: (i) agency, executive office, department, board, commission, bureau, division or authority of the commonwealth; (ii) political subdivision thereof; or (iii) authority established by the general court to serve a public purpose.Mass. Gen. Laws ch. 6, § 220(a) on whose behalf the search was performed. For each public agencyPublic agency"Public agency", any: (i) agency, executive office, department, board, commission, bureau, division or authority of the commonwealth; (ii) political subdivision thereof; or (iii) authority established by the general court to serve a public purpose.Mass. Gen. Laws ch. 6, § 220(a), the published information shall include the race and gender of the subjects of the searches, as assessed by the individual conducting the search.
Subsection (j) mirrors subsection (h) for non-law-enforcement public agencies. The executive office of public safety and security must publish annually on its website, by March 31, the total number of facial recognition searches performed by or at the request of non-law-enforcement public agencies, disaggregated by public agency. The published information must include the race and gender of the subjects of the searches.
(k) 12 Notwithstanding subsection (b), it shall be unlawful for a law enforcement agency of officer to use a biometric surveillance system to infer a person's emotions or affect. It shall also be unlawful for a law enforcement agencyLaw enforcement agency"Law enforcement agency", as defined in section 1 of chapter 6E.Mass. Gen. Laws ch. 6, § 220(a) or officer to use a biometric surveillance system to analyze moving images or video data, whether in real time or as applied to archived information; provided, however, that facial recognitionFacial recognition"Facial recognition", an automated or semi-automated process that assists in identifying or verifying an individual or analyzing or capturing information about an individual based on the physical characteristics of an individual's face, head or body, or that uses characteristics of an individual's face, head or body to derive information about the associations, activities or location of an individual; provided, however, that "facial recognition" shall not include the use of search terms to sort images in a database.Mass. Gen. Laws ch. 6, § 220(a) may be used on a still image taken from moving images or video data if authorized pursuant to subsection (d).
Subsection (k) imposes two categorical prohibitions on law enforcement, stated as supplemental to the general prohibition in subsection (b). First, law enforcement may not use biometric surveillance to infer a person's emotions or affect. Second, law enforcement may not use biometric surveillance to analyze moving images or video data, whether in real time or retrospectively. A narrow exception permits the use of facial recognition on a still image extracted from video, but only if the search is authorized under subsection (d).
(l) Notwithstanding subsection (b), a law enforcement agencyLaw enforcement agency"Law enforcement agency", as defined in section 1 of chapter 6E.Mass. Gen. Laws ch. 6, § 220(a) or officer may: (i) acquire and possess personal electronic devices, such as a cell phone or tablet, that utilize facial recognitionFacial recognition"Facial recognition", an automated or semi-automated process that assists in identifying or verifying an individual or analyzing or capturing information about an individual based on the physical characteristics of an individual's face, head or body, or that uses characteristics of an individual's face, head or body to derive information about the associations, activities or location of an individual; provided, however, that "facial recognition" shall not include the use of search terms to sort images in a database.Mass. Gen. Laws ch. 6, § 220(a) technology for the sole purpose of user authentication; (ii) acquire, possess and use automated video or image redaction software; provided, that such software does not have the capability of performing facial recognitionFacial recognition"Facial recognition", an automated or semi-automated process that assists in identifying or verifying an individual or analyzing or capturing information about an individual based on the physical characteristics of an individual's face, head or body, or that uses characteristics of an individual's face, head or body to derive information about the associations, activities or location of an individual; provided, however, that "facial recognition" shall not include the use of search terms to sort images in a database.Mass. Gen. Laws ch. 6, § 220(a) or other remote biometric recognitionOther remote biometric recognition"Other remote biometric recognition", an automated or semi-automated process that assists in identifying or verifying an individual or analyzing or capturing information about an individual based on an individual's gait, voice or other biometric characteristic or that uses such characteristics to derive information about the associations, activities or location of an individual; provided, however, that "other remote biometric recognition" shall not include the identification or verification of an individual using deoxyribonucleic acid, fingerprints, palm prints or other information derived from physical contact.Mass. Gen. Laws ch. 6, § 220(a); and (iii) receive evidence related to the investigation of a crime derived from a biometric surveillance technologyBiometric surveillance technology"Biometric surveillance technology", any computer software that performs facial recognition or other remote biometric recognition.Mass. Gen. Laws ch. 6, § 220(a); provided, that the use of a biometric surveillance technologyBiometric surveillance technology"Biometric surveillance technology", any computer software that performs facial recognition or other remote biometric recognition.Mass. Gen. Laws ch. 6, § 220(a) was not knowingly solicited by a law enforcement agencyLaw enforcement agency"Law enforcement agency", as defined in section 1 of chapter 6E.Mass. Gen. Laws ch. 6, § 220(a) or officer in violation of subsection (b).
Subsection (l) creates three narrow exceptions to the general prohibition in subsection (b). Law enforcement may: (i) acquire and possess personal electronic devices (cell phones, tablets) that use facial recognition solely for user authentication; (ii) acquire, possess, and use automated video or image redaction software, provided it cannot perform facial recognition or other remote biometric recognition; and (iii) receive evidence derived from biometric surveillance technology in the course of a criminal investigation, so long as the law enforcement agency or officer did not knowingly solicit that use in violation of subsection (b). These are safe harbor provisions that define the boundaries of the general ban.