While Washington’s comprehensive data privacy bill (SB 6182) — inspired by California’s CCPA — died when legislators could not hammer out a compromise over enforcement mechanisms, the state legislature did reach agreement and Gov. Jay Inslee signed into law a facial recognition bill (SB 6280) that provides some important privacy and antidiscrimination provisions regarding state and local governmental use of the technology.

The Washington law defines a “facial recognition service” as “technology that analyzes facial features and is used by a state or local government agency for the identification, verification, or persistent tracking of individuals in still or video images.” The law imposes quite a few requirements on state and local governmental agencies using facial recognition services. For example, such agencies must file a notice of intent and an accountability report prior to developing, procuring, or using a facial recognition service. The report would outline a number of key issues such as how that data is collected and processed; how the agency will use, manage, retain and secure the data; how employees will be trained on its use; and how the software will be tested before roll-out. By way of further example, the law requires agencies using facial technology to make decisions that produce legal effects for individuals (e.g., finance and lending, housing, insurance, criminal justice, health care) to ensure such decisions are “subject to meaningful human review.” Other requirements extend to training, testing, disclosures of errors and complaints, and a variety of other important issues.

The law does include a number of important exceptions, such as for the analysis of facial features to access an electronic device or uses mandated by federal regulation, including verifying identities at an airport or seaport.

On the whole, the Washington law obtains a certain level of transparency regarding state and local governmental use of facial recognition applications, while at the same time, creating a pathway for such use. It is possible that given its balanced approach, the law could become a template of sorts for other states, although some have already imposed limitations on the use of facial recognition by government agencies (such as California’s three-year moratorium on the use by law enforcement of facial recognition and other biometric surveillance in connection with body cameras). Of course, this law does not regulate commercial uses of the technology, a topic that is contentious and multifaceted, but also on the radar of many state legislatures (particularly given the steady flow of litigation stemming from Illinois’s Biometric Information Privacy Act (BIPA)).

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Photo of Jeffrey Neuburger Jeffrey Neuburger

Jeffrey Neuburger is co-head of Proskauer’s Technology, Media & Telecommunications Group, head of the Firm’s Blockchain Group and a member of the Firm’s Privacy & Cybersecurity Group.

Jeff’s practice focuses on technology, media and intellectual property-related transactions, counseling and dispute resolution. That expertise…

Jeffrey Neuburger is co-head of Proskauer’s Technology, Media & Telecommunications Group, head of the Firm’s Blockchain Group and a member of the Firm’s Privacy & Cybersecurity Group.

Jeff’s practice focuses on technology, media and intellectual property-related transactions, counseling and dispute resolution. That expertise, combined with his professional experience at General Electric and academic experience in computer science, makes him a leader in the field.

As one of the architects of the technology law discipline, Jeff continues to lead on a range of business-critical transactions involving the use of emerging technology and distribution methods. For example, Jeff has become one of the foremost private practice lawyers in the country for the implementation of blockchain-based technology solutions, helping clients in a wide variety of industries capture the business opportunities presented by the rapid evolution of blockchain. He is a member of the New York State Bar Association’s Task Force on Emerging Digital Finance and Currency.

Jeff counsels on a variety of e-commerce, social media and advertising matters; represents many organizations in large infrastructure-related projects, such as outsourcing, technology acquisitions, cloud computing initiatives and related services agreements; advises on the implementation of biometric technology; and represents clients on a wide range of data aggregation, privacy and data security matters. In addition, Jeff assists clients on a wide range of issues related to intellectual property and publishing matters in the context of both technology-based applications and traditional media.