“Facial template” means the machine-interpretable pattern of facial features that is extracted from one or more images of an individual by a facial recognition service.The term excludes functionality that enables access to electronic devices, and the redaction of recordings to protect the subject depicted in the recording, if the process does not generate or result in the retention of biometric or surveillance information.“Facial recognition service” means 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.However, the use of facial recognition services under these conditions still requires disclosure to the state. The law also exempts the use of facial recognition services when done either to comply with a federal mandate or in partnership with federal authorities, including the use of facial recognition at airports. It applies to all state and local government agencies except for the department of licensing. Effective date, scope of application, key definitions The key provisions of the law are as follows: Washington’s new law treats government use of facial recognition technology as a very significant privacy issue and imposes extensive requirements and limitations on government use that will very likely slow deployment of the technology in the state. The concept is in the current draft of a Uniform Law Commission model privacy bill. With this precedent ensconced in the Washington Revised Code, it would not be surprising to see it in, and in future state privacy laws governing the public sector (including the Washington Privacy Act’s eventual passage). Already, the 2020 session has seen many privacy bills (including the WPA) that include non-discrimination provisions prohibiting the use of consumer data to engage in invidious discrimination. The law also includes a first-in-the-nation definition of “decisions that produce legal effects concerning individuals or other similarly significant effects concerning individuals.” These are defined as “decisions that result in the provision or denial of financial and lending services, housing, insurance, education enrollment, criminal justice, employment opportunities, health care services, or access to basic necessities such as food and water, or that impact civil rights of individuals.” This concept may well be used in other state and federal statutes addressing other privacy issues. The law includes significant provisions, described below, requiring extensive accountability reports, three public hearings and a cooling off period before deploying a facial recognition service, as well as human review of consequential decisions made using the technology, significant testing to prevent discriminatory effects, a warrant requirement and other restrictions on surveillance conducted using facial recognition technology. In reaching agreement on SB 6280, the Washington Senate and House avoided the roadblocks that prevented WPA’s passage and succeeded in placing significant controls on public sector use of facial recognition technology in the state. In early March, the Washington state legislature passed a public sector facial recognition privacy bill that has been little noticed due the failure of the Washington Privacy Act (WPA) as well as the subsequent coronavirus disease 2019 (COVID-19) pandemic, which emerged quickly in the state.
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