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Massachusetts police reform bill: Senate redrafts facial recognition proposal after Gov. Charlie Baker rejects restrictions

MassLive.com logo MassLive.com 12/22/2020 Steph Solis, masslive.com
a group of people holding wine glasses: Senate President Karen Spilka, left, takes questions from reporters alongside Sen. Sonia Chang-Diaz, right, a key negotiator on the police reform bill and a member of the Black and Latino Legislative Caucus. © Steph Solis | ssolis@masslive.com/Steph Solis/masslive.com/TNS Senate President Karen Spilka, left, takes questions from reporters alongside Sen. Sonia Chang-Diaz, right, a key negotiator on the police reform bill and a member of the Black and Latino Legislative Caucus.

Massachusetts lawmakers went back to the drawing board after Gov. Charlie Baker rejected a provision to limit facial recognition in most areas of state government, unveiling changes that regulate how the technology is used among police.

In the latest amendments released Monday, the Senate committee tasked with reviewing the governor’s proposed changes outlined regulations for government use of facial recognition, rather than restricting its use across state agencies. The Legislature’s original language in the police reform bill severely restricted government use of the technology except for the Registry of Motor Vehicles.

Under the latest proposal, any law enforcement officer that wants to use facial recognition data in an investigation would need a court order or written approval from the RMV, the Massachusetts State Police or the FBI. That officer would only be approved in certain cases, including in emergencies where a person or group of people could face “substantial risk to harm.”

The committee also carved out an exception state police officers investigating identity fraud cases or similar issues involving the RMV. It also expanded the parameters of a study on facial recognition to analyze its use and impact across the commonwealth, not just at the RMV.

“It is not enough to say that the lives of Black and brown people matter in this commonwealth; we must turn words into action, and action into law,” said Senate President Karen Spilka, an Ashland Democrat, in a statement Monday afternoon. “The version of the bill we will be voting on today takes into account the priorities expressed by people of color, including the development of use-of-force standards and the limitation of facial recognition technology, while also striking a balance amongst all involved to ensure this landmark bill becomes law.”

The proposal clarifies that a law enforcement agency may buy and possess tablets, cellphones or other devices that use facial recognition technology for user authentication purposes.

The agency would also be allowed to acquire automated video or image redaction software as well as long as it doesn’t have the capability of performing facial recognition or receive biometric data for an investigation, according to the legislation.

The facial recognition provision was one of six major parts of the police reform bill Baker sent back, saying he wouldn’t sign the proposal unless his concerns were addressed. He opposed civilian oversight of police training standards, as well as language that suggests an officer is being discriminatory by looking at an individual’s race, ethnicity, gender identity or other factors, even if those details are relevant to the crime being investigated.

Lawmakers agreed to leave training under the purview of the municipal police training committee, which is overseen by the Baker administration, rather than under a new civilian-led committee under the new Peace Officer Standards and Training (POST) Commission.

They also designated one of the commission’s seats to a police labor representative, though civilians outweigh police officials in the commission six to three.

The latest proposal also amends the definition of “bias-free policing” to include cases where an officer considers a person’s race, ethnicity, sex, gender identity, sexual orientation, religion, mental or physical disability, immigration status or socioeconomic or professional level if any of those details is relevant to the crime.

The “bias-free policing” definition also allows actions that “are based on a law enforcement purpose or reason which is non-discriminatory, or which justifies different treatment.”

Rev. Ray Hammond, a physician and pastor at Bethel AME Church in Boston’s Jamaica Plain neighborhood, said he was disappointed to see the Senate cede to the governor in the definition of “bias-free policing” and use-of-force standards.

The latest language, as he read it, is not strict enough in limiting use of force among officers on the basis of a civilian’s identity, but he hopes the POST Commission can change that over time. The commission still has the authority to develop its own rules and regulations.

“They are clearly a part of the process of determining those definitions and it’s clear those definitions need to be addressed,” Hammond said. “I think that’s what people are finding helpful, but it puts a lot on the shoulders of this POST commission.”

The POST Commission, a system to certify and decertify officers, is the heart of the massive police reform bill and one of the provisions Baker, Spilka and House Speaker Robert DeLeo agreed on when drafting legislation in the wake of George Floyd’s death at the hands of Minneapolis police in late May.

The Black and Latino Legislative Caucus had been in talks with Baker for months before Floyd’s death. Rep. Russell Holmes, a past leader of the caucus, had filed bills proposing such a system and the caucus had made it one of its priorities in addressing policing standards in Massachusetts.

But the Senate bill that was released weeks after the governor’s included a broader range of regulations, including limits on facial recognition, bans on using tear gas and K9 units on large protests and limiting qualified immunity protections for public officials.

The House, which had expected to file its bill first, ultimately moved ahead with a similar bill as what the Senate proposed. Unlike the Senate, the House proposed stripping decertified police officers of qualified immunity protections. The policing bill landed on Baker’s desk in early December with the House’s qualified immunity provision.

Related Content:

Massachusetts Gov. Charlie Baker sends back massive policing bill, raising concerns about facial recognition limits and setup of certification commission

Facial recognition: What to know about the Massachusetts police reform bill’s restrictions on the controversial tech

Massachusetts police certification: What does an officer need to get credentials? What can lead to decertification?

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