Last week, the BBA Council endorsed new policy positions calling for enhanced regulation of face-surveillance technology and a quick resolution of outstanding questions about how the Fair Share Amendment to the state constitution will be implemented.
BBA Joins Calls to Further Regulate Face-Surveillance Technology
Also known as facial-recognition, this technology allows for identification of individuals seen in photos or in videos, through matching against an image database. The state enacted some regulation in 2021 in legislation that also established a commission to study the issue and report back with recommendations. (See Chapter 253 of the Acts of 2020: Section 26 provides for oversight of law-enforcement use of the technology, and Section 105 creates the commission.)
At the same time, three BBA sections—Privacy, Cybersecurity & Digital Law (PCDL), Civil Rights & Civil Liberties, and Criminal Law —undertook their own analysis of the issue, for purposes of recommending a BBA position. A PCDL sub-committee took the lead in developing a set of principles that the BBA could endorse, to guide legislators in debating further regulations. Discussions with the other two sections were well underway last spring, when the commission released its report, which offered a broad set of 13 recommendations (see, in particular, pages 30-33).
These recommendations largely tracked with the thoughts of the relevant sections, and those groups came together to back a BBA endorsement of them generally and applauded the Commission’s “thorough, even-handed approach and  its conclusion that ‘facial recognition can be used in limited, tightly regulated circumstances to advance legitimate criminal investigations’, as well as its ‘marked concern over other government use of facial recognition, including in schools and airport security’.”
The sections also suggested that the BBA go further in three areas, to strengthen the commission’s recommendations:
- Any legislation should be especially clear that access to facial-recognition systems (Recommendation #1) can be expanded only by the Legislature.
- While Recommendation #6 states that a search should be permitted only “pursuant to a warrant issued by a judge based on probable cause that an unidentified or unconfirmed individual in an image has committed a felony,” we propose that any legislation clarify this point to allow for a search, where otherwise authorized (by a warrant or in an “emergency situation”, per Recommendation #7), to identify a known individual—whether or not law enforcement is aware of the particular place the individual may be located.
- As Recommendation #9 provides, no technology authorized for law-enforcement use should allow for “emotion recognition, surveillance and tracking”, described by the Commission as “nascent, overreaching technologies with low reliability.” We agree but wish to emphasize that failure to do so risks unleashing a regime of unlimited generalized surveillance, permitting a government to build a detailed record of the movements, activities, and associations of every person within its domain. This ban should explicitly extend to real-time monitoring of subjects or the use of video, as opposed to still images generated from a database (as noted in footnote 70).
The principles add that, in addition to the right to constitutional due process that the commission focused most of its attention on, “it is important not to implicitly exclude other rights by silence, [as] there are many other rights that are relevant to the use of face surveillance, particularly if/when search results are used in criminal prosecutions.”
Finally, the newly-adopted principles stress that this is likely the early stage in development of facial-recognition technology, and that they have been developed and approved with this particular moment in mind, and with the acknowledgement “that as with any new technology, such as use of DNA for identification—future changes may require reconsideration, by the Legislature and the public.”
We expect that this technology will again be the subject of debate in the Legislature during the 2023-24 session that has just begun, and we will be offering this perspective for consideration in the development of any new legislation on this issue.
BBA Asks Policy-Makers to Provide Answers to Lingering “Fair Share” Questions
When voters added a new amendment to the state constitution in November, imposing an additional 4% income-tax surcharge on any taxable income above $1 million in a given calendar year (beyond the flat 5% tax on all income), it may have seemed that the issue was settled. However, lawyers and other professionals who practice in this area have noted that the text of the amendment leaves a few questions unanswered:
- How will trusts and estates, as well as corporations, that generate income above $1 million be taxed?
- Will the threshold income level be $2 million for couples filing jointly—rather than $1 million as a plain reading of the amendment text might suggest?
- What effect will this have on pass-through entities?
We were alerted to these concerns by members of the BBA’s Tax and Trusts & Estates Sections, who noted the uncertainty created by these questions—leaving them unsure how best to advise clients—as well as the urgency of the issue, with the amendment already now in effect (as of January 1, 2023) and quarterly estimated payments coming due in April for those who make them.
The Council quickly took up, and endorsed, their proposal that the BBA strongly urge the legislative and executive branches to act quickly in providing clarification. The BBA took no position on exactly how the outstanding questions are to be answered, but joins other organizations, including the Massachusetts Society of CPA’s, the Massachusetts Taxpayers Foundation, and Associated Industries of Massachusetts, in trying to impress upon the new Governor and Legislature how important prompt resolution of this issue is.