SB2293

SECTION 1. The legislature finds that the unregulated and unfettered use of facial recognition technology poses unique and significant implications with respect to the civil rights and liberties of residents of and visitors to Hawaii. The legislature recognizes, however, that in certain limited circumstances, the use of this technology does not infringe on an individual's privacy rights.

The legislature also finds that detecting infectious travelers is a necessary step to ensure that Hawaii's economy can fully function while keeping the public safe. In May 2021, facial imaging equipment became operational throughout the State's five major airports that accept trans-Pacific flights. The equipment is being used in conjunction with thermal screening equipment as part of the Hawaii department of transportation airports division project to screen travelers for fevers and detect those who may be infected with coronavirus disease 2019 (COVID‑19) or other infectious diseases that pose a public health risk. According to a department of transportation news release dated May 17, 2021, any images collected under the project will remain anonymous, meaning no traveler's image will be connected to personal identifying information; images will not contain information on criminal history or outstanding warrants; images will not be shared with other agencies and will be deleted within thirty minutes; and travelers having a core body temperature of 100.3 degrees Fahrenheit and lower will not have their image recorded at all.

The legislature believes that the airports division of the department of transportation should be allowed to continue using facial recognition technology, solely within airports, for the purposes of emergency response and protection of public health. However, any screening or monitoring must be properly balanced with the constitutional right to privacy, the immediate destruction of obtained data, and prohibitions on sharing that data.

The purpose of this Act is to ensure that the legislature has the opportunity to properly vet future uses of rapidly evolving facial recognition technology, and to prevent any unintended consequences from interfering with the privacy and freedom of persons in the State -- as has occurred in other jurisdictions -- by limiting the department of transportation's use of facial recognition systems to certain specified situations.

SECTION 2. Section 26-19, Hawaii Revised Statutes, is amended to read as follows:

"§26-19 Department of transportation. (a) The department of transportation shall be headed by a single executive to be known as the director of transportation. The department shall establish, maintain, and operate transportation facilities of the State, including highways, airports, harbors, and such other transportation facilities and activities as may be authorized by law.

The department shall plan, develop, promote, and coordinate various transportation systems management programs that shall include, but not be limited to, alternate work and school hours programs, bicycling programs, and ridesharing programs.

The department shall develop and promote ridesharing programs which shall include but not be limited to, carpool and vanpool programs, and may assist organizations interested in promoting similar programs, arrange for contracts with private organizations to manage and operate these programs, and assist in the formulation of ridesharing arrangements. Ridesharing programs include informal arrangements in which two or more persons ride together in a motor vehicle.

(b) The functions and authority heretofore exercised by the department of public works with respect to highways are transferred to the department of transportation established by this chapter.

(c) On July 1, 1961, the Hawaii aeronautics commission, the board of harbor commissioners and the highway commission shall be abolished and their remaining functions, duties, and powers shall be transferred to the department of transportation.

(d) It shall be unlawful for the department or any departmental official to obtain, retain, share, access, or use any facial recognition system, or any information obtained from a facial recognition system, unless all of the following conditions are met:

(1) The director of health has determined that there exists the potential for a serious outbreak of a communicable or dangerous disease or that there exists the likelihood of extensive injury or death;

(2) Use of the facial recognition system, and any information obtained therefrom, occurs solely within state airports;

(3) The facial recognition system is used in conjunction with thermal scanning technology for the purpose of identifying an individual when there is reason to believe, based on the results of the thermal scan, that the individual may presently be infected with a communicable or dangerous disease; and

(4) Information obtained from the facial recognition system is:

(A) Destroyed within sixty minutes after being obtained;

(B) Not connected to any personal identifying data, including an individual's name, address, or driver's license or passport number;

(D) Not shared outside of the department; and

(E) Not used to establish probable cause for an arrest;

provided that this subsection shall not apply to a departmental official's personal use of a privately owned facial recognition system when the departmental official is acting in an unofficial capacity.

(e) As used in this section:

"Departmental official" means any person or entity acting on behalf of the department of transportation, including any officer, employee, agent, contractor, subcontractor, or vendor.

"Facial recognition" means an automated or semiautomated process that:

(1) Assists in identifying or verifying the identity of an individual or capturing information about an individual based on the physical characteristics of the individual's face; or

(2) Uses characteristics of an individual's face, head, or body to infer emotion, associations, activities, or the location of the individual.

"Facial recognition system" means any computer software or application that performs facial recognition."

SECTION 3. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 4. New statutory material is underscored.

SECTION 5. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________

THE SENATE	S.B. NO.	2293
THIRTY-FIRST LEGISLATURE, 2022
STATE OF HAWAII