Revision: May 22, 2020, 1:56 p.m.
HB 1642-FN - AS AMENDED BY THE HOUSE
HOUSE BILL 1642-FN
SPONSORS: Rep. Hopper, Hills. 2; Rep. Burt, Hills. 39; Rep. Ward, Rock. 28; Rep. Warden, Hills. 15; Rep. Cushing, Rock. 21; Rep. Welch, Rock. 13; Rep. Conley, Straf. 13; Rep. Abramson, Rock. 20
COMMITTEE: Executive Departments and Administration
This bill prohibits the use of face recognition technology.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Twenty
Be it Enacted by the Senate and House of Representatives in General Court convened:
Face Recognition Technology Prohibited
644:23 Definitions. In this subdivision:
I. "Face recognition technology" means an automated or semi-automated process that assists in identifying an individual or capturing information about an individual, based on the physical characteristics of an individual's face.
II. "Face recognition system" means any computer software or application that performs face recognition.
III. "State" means any department, agency, bureau, or administrative unit of the state of New Hampshire, including any city, town, county, school district, or municipal entity therein.
IV. "State official" shall mean any person or entity acting on behalf of the state of New Hampshire as defined in paragraph III, including any officer, employee, agent, contractor, subcontractor, or vendor.
644:24 Face Recognition Technology Prohibited. Neither the state nor any state official shall obtain, retain, access, or use any face recognition system or any information obtained from a face recognition system. This section shall not prohibit a New Hampshire state law enforcement agency from lawfully assisting a federal agency in a joint law enforcement activity wherein the federal agency uses federal face recognition technology. A New Hampshire law enforcement agency or official shall not request, encourage, suggest, or otherwise initiate access to information or data from or use of an out-of-state face recognition system.
644:25 Evidence Inadmissible.
I. Any data or information collected or derived from any use of face recognition technology in violation of this subdivision shall be inadmissible in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority subject to the jurisdiction of the state of New Hampshire.
II. Any evidence derived from data or information collected from any use of face recognition technology in violation of this subdivision shall be inadmissible in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority subject to the jurisdiction of the state of New Hampshire.
III. Data or information collected using face recognition technology or derived from such data or information in violation of this subdivision shall be considered unlawfully obtained, and shall be irretrievably deleted from any document in possession of the state or in any court file or filing upon discovery.
644:26 Private Cause of Action.
I. Any person aggrieved by a violation of this subdivision may file for injunctive relief, declaratory relief, or writ of mandamus in any court of competent jurisdiction to enforce this subdivision. An action instituted under this section shall be brought against the respective department of the state of New Hampshire or any other governmental agency with possession, custody, or control of data or information subject to this subdivision, if necessary to effectuate compliance with this subdivision.
II. Any person who has been subjected to face recognition technology in violation of this subdivision, or about whom information has been obtained, retained, accessed, or used in violation of this subdivision, may file an action in any court of competent jurisdiction against the state and shall be entitled to recover actual damages, but not less than liquidated damages of $1,000 or $100 for each violation, whichever is greater.
III. A court shall award costs and reasonable attorneys' fees to a plaintiff who is the prevailing party in an action brought under this section.
644:27 Consequences. A violation of this subdivision by a state official shall result in consequences that may include retraining, suspension, or termination, subject to due process requirements.
263:40-b Use of Facial Recognition Technology Prohibited. The department is prohibited from using any facial recognition technology in connection with taking or retaining any photograph or digital image [for purposes of this chapter].
HB 1642-FN- FISCAL NOTE
AS AMENDED BY THE HOUSE (AMENDMENT #2020-0622h)
FISCAL IMPACT: [ X ] State [ ] County [ ] Local [ ] None
Estimated Increase / (Decrease)
[ X ] General [ ] Education [ ] Highway [ ] Other
This bill prohibits state or municipal officials from obtaining or using any face recognition technology or any information received from such a system. Data collected from such a system shall be inadmissible in any judicial proceeding and violations of this provision will create a private cause of action against the government entity using such information.
The Department of Justice indicates the bill will have little to no impact on the current caseload prosecutions of the Attorney General's Office. However, any possible increase in civil litigation against the state is unknown, and the Department is unable to determine what, if any fiscal impact may result from defending the state from such claims.
The Departments of Administrative Services and Safety indicated they do not use such systems presently.
The New Hampshire Association of Counties indicates there would be no additional cost to county government at this time but there may be future costs as local governments continue to share technology platforms with other levels of government.
The New Hampshire Municipal Association state there is no requirement for municipalities to do anything, so there is no impact on expenditures or revenues.
It is assumed this bill will not take effect until FY 2021.
Departments of Justice, Administrative Services and Safety, Judicial Branch, New Hampshire Association of Counties and New Hampshire Municipal Association