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A person aggrieved by the requirements of this Section may seek an administrative appeal to the Inspectional Services Department. Any person aggrieved by a final decision under this Section by the Inspectional Services Department, may seek relief in any court of competent jurisdiction as provided by the laws of the commonwealth.
(CBC 1985 16-61.5; Ord. 2016 c. 14 § 1)
(A) Definitions. For the purpose of this Section, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
BOSTON. Any Department, Agency, Bureau and/or subordinate division of the city.
BOSTON OFFICIAL. Any person or entity acting on behalf of the city, including any officer, employee, agent, contractor, subcontractor or vendor.
FACE SURVEILLANCE. An automated or semi-automated process that assists in identifying or verifying an individual, or in capturing information about an individual, based on the physical characteristics of an individual’s face.
FACE SURVEILLANCE SYSTEM. Any computer software or application that performs face surveillance.
(B) Ban on city use of face surveillance.
(1) It shall be unlawful for Boston or any Boston official to:
(a) Obtain, retain, possess, access or use:
1. Any face surveillance system; or
2. Information derived from a face surveillance system.
(b) Enter into an agreement with any third party for the purpose of obtaining, retaining, possessing, accessing or using, by or on behalf of Boston or any Boston official any face surveillance system; or
(c) Issue any permit or enter into any other agreement that authorizes any third party, on behalf of Boston or any Boston official, to obtain, retain, possess, access or use:
1. Any face surveillance system; or
2. Information derived from a face surveillance system.
(2) Nothing in division (B)(1) shall prohibit Boston or any Boston official from:
(a) Using evidence relating to the investigation of a specific crime that may have been generated from a face surveillance system, so long as such evidence was not generated by or at the request of Boston or any Boston official;
(b) Obtaining or possessing:
1. An electronic device, such as a cell phone or computer, for evidentiary purposes; or
2. An electronic device, such as a cell phone or tablet, that performs face surveillance for the sole purpose of user authentication.
(c) Using face recognition on an electronic device, such as a cell phone or tablet, owned by Boston or by any Boston official, for the sole purpose of user authentication;
(d) Using social media or communications software or applications for communicating with the public; provided such use does not include the affirmative use of any face surveillance;
(e) Using automated redaction software; provided such software does not have the capability of performing face surveillance; or
(f) Complying with the National Child Search Assistance Act of 1990, being 34 U.S.C. §§ 41307 et seq.
(C) Enforcement.
(1) Face surveillance data collected or derived in violation of this Section shall be considered unlawfully obtained and shall be deleted upon discovery, subject to applicable law.
(2) No data collected or derived from any use of face surveillance in violation of this Section and no evidence derived therefrom may be received in evidence in any proceeding in or before any Department, Officer, Agency, regulatory body, legislative committee or authority subject to the jurisdiction of the city.
(3) Any violation of this Section constitutes an injury and any person may institute proceedings for injunctive relief, declaratory relief or writ of mandate in any court of competent jurisdiction to enforce this Section. A court shall award costs and reasonable attorneys’ fees to a plaintiff who is the prevailing party in such proceedings. An action instituted under this division (C)(3) shall be brought against the respective City Department, and the city and, if necessary to effectuate compliance with this Section, any other governmental Agency with possession, custody or control of data subject to this Section.
(4) Violations of this Section by a city employee shall result in consequences that may include retraining, suspension or termination, subject to due process requirements and provisions of collective bargaining agreements.
(5) Nothing in this Section shall be construed to limit any individual’s rights under commonwealth or federal law.
(D) Severability.
(1) If any provision of this Section shall be held to be invalid by a court of competent jurisdiction, then such provision shall be considered separately and apart from the remaining provisions, which shall remain in full force and effect.
(E) Effective date. The provisions of this Section shall be effective immediately upon passage.
(CBC 1985 16-62; Ord. 2020 c. 2)
The purpose of this Section is to provide accountability, transparency and oversight regarding the acquisition and use of surveillance technology and surveillance data by the city and its Agencies and Officers, and to protect privacy, civil rights and racial and immigrant justice while allowing for appropriate use to assist in the charge of improving delivery of services and public safety.
(CBC 1985 16-63.1; Ord. 2021 c. 14)
For the purpose of this Section, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
ANNUAL SURVEILLANCE REPORT. A written report submitted by the Mayor’s Office on an annual basis concerning specific surveillance technology used during the previous year and containing the information set forth in this Section by the following City Departments and Agencies: the Boston Police Department, the Boston Parks Department Park Rangers, Boston Public Schools, Boston Public Health Commission, Boston Housing Authority, Boston Municipal Protection Services and the Office of Emergency Management.
BPD. The Boston Police Department.
BPS. The Boston Public Schools.
BPS PERSONNEL. Any employee or Agent of the Boston Public Schools, excluding School Safety Specialists.
EXIGENT CIRCUMSTANCES. The Police Commissioner, the Police Commissioner’s designee, the head of BHA’s Police or the head of the BPHC Police’s good faith and reasonable belief that an emergency involving danger of death, physical injury or significant property damage or loss, similar to those that would render it impracticable to obtain a warrant, requires the use of the surveillance technology or the surveillance data it provides. The use of surveillance technology in EXIGENT CIRCUMSTANCES shall not infringe upon an individual’s right to peacefully protest or exercise other lawful and protected constitutional rights.
HISTORIC STUDENT REPORTS. Student reports that they have created or produced prior to the effective date of this Section.
IDENTIFIABLE INDIVIDUAL. An individual whose identity can be revealed by data, including surveillance data, or revealed by data when it is analyzed and/or combined with any other type of record.
SCHOOL SAFETY SPECIALISTS. Any officials or employees that belong to the Boston Public Schools Department of Safety Services or any other security and enforcement personnel, and that may or may not be licensed by the Boston Police Department as special Police Officers.
SERIOUS BODILY HARM. Bodily injury that results in permanent disfigurement, loss or impairment of a bodily function, limb or organ, or substantial risk of death.
STUDENT REPORT. A written record that is not an educational record protected under FERPA and that is created by School Safety Specialists or by BPS personnel and that pertains to a student. STUDENT REPORTS include but are not limited to School Safety Reports, BPD Form 1.1 Incident Reports, Field Interrogation and Observation Reports, Intelligence Reports and Face Sheets. STUDENT REPORTS also include informal emails, texts and other electronic messages that describe or contain details pertaining to student activity.
SURVEILLANCE. The act of observing or analyzing the movements, behavior or actions of Identifiable Individuals.
SURVEILLANCE DATA. Any electronic data collected, captured, recorded, retained, processed, intercepted or analyzed by surveillance technology acquired by the city or operated at the direction of the city.
SURVEILLANCE OVERSIGHT ADVISORY BOARD. A group comprised of five individuals, one representative to be chosen by each of the following: the president of the Boston City Council, the commonwealth’s American Civil Liberties Union and the Boston Police Commissioner; and two representatives chosen by the Mayor, at least one of whom shall be an academic representative with expertise in technology and public policy issues. The Board shall serve as an advisory body to host further discussion and provide recommendations on surveillance issues to the Mayor.
SURVEILLANCE TECHNOLOGY. Any device, hardware or software that is capable of collecting, capturing, recording, retaining, processing, intercepting, analyzing, monitoring or sharing audio, visual, digital, location, thermal, biometric, associational or similar information specifically associated with, or capable of being associated with, any identifiable individual or group; or any system, device or vehicle that is equipped with an electronic surveillance device, hardware or software. Examples of SURVEILLANCE TECHNOLOGY include, but are not limited to:
(1) International mobile subscriber identity (“IMSI”) catchers and other cell-site simulators;
(2) Automatic license plate readers;
(3) Electronic toll readers;
(4) Closed-circuit television cameras except as otherwise provided herein;
(5) Biometric surveillance technology, including facial, voice, iris and gait-recognition software and databases;
(6) Mobile DNA capture technology;
(7) Gunshot detection and location hardware and services;
(8) X-ray vans;
(9) Video and audio monitoring and/or recording technology, such as surveillance cameras;
(10) Surveillance enabled or capable light bulbs or light fixtures;
(11) Tools, including software and hardware, used to gain unauthorized access to a computer, computer service or computer network;
(12) Social media monitoring software;
(13) Through-the-wall radar or similar imaging technology;
(14) Passive scanners of radio networks;
(15) Long-range Bluetooth and other wireless-scanning devices;
(16) Thermal imaging or “forward-looking infrared” devices or cameras;
(17) Electronic database systems containing surveillance data about identifiable individuals;
(18) Radio-frequency identification (“RFID”) scanners; and
(19) Software designed to integrate or analyze data from Surveillance Technology, including surveillance target tracking and predictive policing software.
SURVEILLANCE TECHNOLOGY IMPACT REPORT. A written report submitted by the Mayor’s Office with a request for approval of acquisition or use of surveillance technology, and which includes, at a minimum, the requirements set forth in this Section.
SURVEILLANCE USE POLICY. A policy for the city’s use of surveillance technology, approved by the Corporation Counsel and the Mayor’s Office, and submitted by the Mayor’s Office to and approved by the Boston City Council. The SURVEILLANCE USE POLICY shall at a minimum satisfy the requirements set forth in this Section.
TECHNOLOGY-SPECIFIC SURVEILLANCE USE POLICY. A policy governing the city’s use of a specific surveillance technology not already covered under the City’s Surveillance Use Policy, approved by the Corporation Counsel and the Mayor, and submitted by the Mayor to the Boston City Council with a Surveillance Technology Impact Report under this Section.
(CBC 1985 16-63.2; Ord. 2021 c. 14)
(A) Applicability.
(1) This Section shall apply to the following City Departments and Agencies: the Boston Police Department, Boston Public Schools, Boston Public Health Commission, the Boston Parks Department Park Rangers, Boston Housing Authority, Boston Municipal Protection Services and the Office of Emergency Management.
(2) For the purpose of this Section, the word
CITY shall mean the City Departments and Agencies listed above.
(B) Exceptions and exemptions. The following situations are exceptions and exemptions from this Section.
(1) The following do not constitute Surveillance Data and are exempted from the requirements of this Section:
(a) Surveillance Data acquired where the individual knowingly and voluntarily consented to provide the information, such as submitting personal information for the receipt of city services; and
(b) Surveillance Data acquired where the individual was presented with a clear and conspicuous opportunity to opt-out of providing the information.
(2) Surveillance Technology does not include the following devices, software or hardware, which are exempt from the requirements of this Section, unless the devices, hardware or software are modified to include additional surveillance capabilities:
(a) Routine office hardware, such as televisions, computers and printers, that are in widespread public use and will not be used for any surveillance or surveillance-related functions;
(b) Parking ticket devices (“PTDs”) and related databases;
(c) Manually-operated, non-wearable, handheld digital cameras, audio recorders and video recorders that are not designed to be used surreptitiously, that are used for non-law enforcement and non-investigatory purposes and whose functionality is used for manually capturing and manually downloading video and/or audio recordings;
(d) Cameras installed in or on a Police vehicle;
(e) Cameras installed pursuant to commonwealth law authorization in or on any vehicle or along a public right-of-way solely to record traffic violations or traffic patterns; provided that the surveillance data gathered is used only for that purpose;
(f) Surveillance devices that cannot record or transmit audio or video or be remotely accessed, such as image stabilizing binoculars or night vision goggles;
(g) City databases that do not and will not contain any surveillance data or other information collected, captured, recorded, retained, processed, intercepted or analyzed by surveillance technology;
(h) Manually-operated technological devices that are used primarily for internal city communications and are not designed to surreptitiously collect surveillance data, such as radios and email systems;
(i) Parking access and revenue control systems, including proximity card readers and transponder readers at city owned or controlled parking garages;
(j) Card readers and key fobs used by city employees and other authorized persons for access to city owned or controlled buildings and property;
(k) Cameras installed on city property solely for security purposes, including closed-circuit television cameras installed by the city, to monitor entryways and outdoor areas of city owned or controlled buildings and property for the purpose of controlling access, maintaining the safety of city employees and visitors to city buildings and protecting city property;
(l) Security cameras including closed-circuit television cameras installed by the city to monitor cashiers’ windows and other cash-handling operations and to maintain the safety of city employees and visitors to such areas;
(m) Cameras installed solely to protect the physical integrity of city infrastructure;
(n) Technology that monitors only city employees in response to complaints of wrongdoing or in order to prevent waste, fraud or abuse of city resources;
(o) Devices exclusively capable of detecting radiation;
(p) Radio-frequency identification scanners (“RFIDs”) used for disaster patient tracking by the Boston Public Health Commission; and
(q) BPHC technology used to track BPHC owned or leased equipment and vehicles.
(3) Notwithstanding the provisions of this Section, BPD, BHA Police or BPHC Police may temporarily acquire or temporarily use surveillance technology in exigent circumstances for a period not to exceed 30 days without following the provisions of this chapter before that acquisition or use. However, if these bodies acquire or use surveillance technology in exigent circumstances under this Section, the BPD Commissioner, BHA Head of Police or BPHC Head of Police must:
(a) Report that acquisition or use to the Boston City Council in writing within 30 days following the end of those exigent circumstances;
(b) Submit a surveillance technology impact report, and, if necessary, a technology-specific Surveillance Use Policy to the Boston City Council regarding that surveillance technology within 30 days following the end of those exigent circumstances;
(c) Include that surveillance technology in the Department or Agency’s next annual surveillance report to the Boston City Council following the end of those exigent circumstances;
(d) If the Department or Agency is unable to meet the 30-day timeline to submit a Surveillance Technology Impact Report and, if necessary, a technology-specific Surveillance Use Policy to the Boston City Council, the Department or Agency must notify the Boston City Council in writing requesting to extend this period. The Boston City Council may grant extensions beyond the original 30-day timeline to submit a surveillance technology impact report, and, if necessary, a technology-specific Surveillance Use Policy;
(e) Any surveillance technology impact report, and, if necessary, any Technology-Specific Surveillance Use Policy submitted to the Boston City Council under this Subsection shall be made publicly available on the city’s website upon submission to the Boston City Council; and
(f) Any surveillance technology impact report and, if necessary, technology-specific Surveillance Use Policy submitted to the Boston City Council under this Section may be redacted to the extent required to comply with an order by a court of competent jurisdiction, or to exclude information that, in the reasonable discretion of the Commissioner of Police, if disclosed, would materially jeopardize an ongoing investigation or otherwise represent a significant risk to public safety and security provided, however, that any information redacted pursuant to this division (B)(3)(f) will be released in the next annual surveillance report following the point at which the reason for such redaction no longer exists.
(4) A City Department head may apply a technical patch or upgrade that is necessary to mitigate threats to the city’s environment. The Department shall not use the new surveillance capabilities of the technology until the requirements of this Section are met, unless the Mayor, or their designee, determines that the use is unavoidable; in that case, the Mayor shall request Boston City Council approval as soon as possible. The request shall include a report to the Boston City Council of how the altered surveillance capabilities were used since the time of the upgrade. If the Boston City Council does not approve the use of the proposed new surveillance capabilities, the request shall be sent to the Surveillance Oversight Advisory Board who will make recommendations to the Mayor. Subsequent to receiving the recommendations from the Surveillance Oversight Advisory Board, the Mayor may at their discretion resubmit a modified request to the Boston City Council for approval.
(C) Surveillance Use Policy.
(1) The Mayor shall submit to the Boston City Council for its review and approval a proposed Surveillance Use Policy applicable to each applicable City Department that possesses or uses surveillance technology before the effective date of this Section. If the Boston City Council does not approve the use of the proposed new surveillance capabilities, the request shall be sent to the Surveillance Oversight Advisory Board who will make recommendations to the Mayor. Subsequent to receiving the recommendations from the Surveillance Oversight Advisory Board, the Mayor may, at his or her discretion, resubmit a modified request to the Boston City Council for approval. Notwithstanding the previous sentences, in municipal year 2022, the Boston City Council shall approve and review the surveillance use policy no later than December 14, 2022 before such policy is sent to the Surveillance Oversight Advisory Board.
(2) Any Surveillance Use Policy submitted under this Section shall be made publicly available upon submission to the Boston City Council.
(3) A Surveillance Use Policy shall, at a minimum, specify the following:
(a) Purpose. The specific purpose(s) for the surveillance technology;
(b) Authorized use. The uses that are authorized, the rules and processes required before that use, and the uses that are prohibited;
(c) Data collection. The surveillance data that can be collected by the surveillance technology;
(d) Data access. The individuals who can access or use the collected surveillance data, and the rules and processes required before access or use of the information;
(e) Data protection. The safeguards that protect information from unauthorized access, including, but not limited to, encryption, access- control and access-oversight mechanisms;
(f) Data retention. The time period, if any, for which information collected by the surveillance technology will be routinely retained, the reason that retention period is appropriate to further the purpose(s), the process by which the information is regularly deleted after that period has elapsed and the conditions that must be met to retain information beyond that period;
(g) Public access. If and how collected surveillance data can be accessed by members of the public, including criminal defendants;
(h) Information and data-sharing. If and how other city or non-city entities can access or use the surveillance data, how information is shared among City Agencies or between City Agencies and non-city entities and organizations, including any required justification and legal standard necessary to do so, and any obligation(s) imposed on the recipient of the surveillance data;
(i) Training. The training, if any, required for any individual authorized to use the surveillance data or technology or to access information collected by the surveillance technology, including whether there are training materials;
(j) Oversight. The mechanisms to ensure that the Surveillance Use Policy is followed, including, but not limited to, identifying personnel assigned to ensure compliance with the policy, internal record keeping of the use of the technology or access to information collected by the surveillance technology, audit requirements or procedures, technical measures to monitor for misuse, any independent person or entity with oversight authority and the sanctions for violations of the policy;
(k) Legal authority. The statutes, regulations or legal precedents, if any, that control the collection, capturing, recording, retaining, processing, interception, analysis, release or disclosure of surveillance data and technology; and
(l) Child rights. Special considerations specific to surveillance technology and surveillance data pertaining to minor children.
(4) The Boston City Council shall vote to approve or deny the Surveillance Use Policy by a vote of a simple majority within 60 days of submission. If the Boston City Council does not approve the Surveillance Use Policy, the Policy shall be sent to the Surveillance Oversight Advisory Board who will make recommendations of improvement to the Mayor. Subsequent to receiving the recommendations from the Surveillance Oversight Advisory Board, the Mayor may at their discretion resubmit a modified request to the Boston City Council for approval.
(D) Surveillance technology impact report and Technology-Specific Surveillance Use Policy.
(1) (a) The Mayor’s Office must seek and obtain approval from the Boston City Council as set forth in this Section prior to the city acquiring, using or entering into an agreement to acquire, share or otherwise use, unapproved surveillance technology or surveillance data as defined in this Section.
(b) The city may seek, but not accept, funds for surveillance technology without approval from the Boston City Council; provided that the city shall notify the Boston City Council of the funding application at the time it is submitted, and include in this notification the deadline of the funding opportunity and details regarding the nature of the surveillance technology for which funding is sought. If the Boston City Council declines to accept funds for surveillance technology, the request to accept the funds shall be sent to the Surveillance Oversight Advisory Board who will make recommendations to the Mayor. Subsequent to receiving the recommendations from the Surveillance Oversight Advisory Board, the Mayor may at their discretion resubmit a modified request to the Boston City Council for approval.
(2) Acquisition of surveillance technology by applicable City Departments. Unless exempted or excepted from the requirements of this Section, any applicable City Department intending to acquire new surveillance technology or surveillance data, including, but not limited to, procuring that surveillance technology without the exchange of monies or other consideration, or use surveillance technology or surveillance data for a purpose or in a manner not previously approved, shall, prior to acquisition or use, obtain Council approval of the acquisition or use. The process for obtaining approval shall be as follows.
(a) The City Department shall submit a surveillance technology impact report, and, if necessary, a Technology-Specific Surveillance Use Policy, as described below, to the Mayor’s Office for review and approval.
(b) If the request is approved by the Mayor’s Office, the Mayor’s Office shall submit the request, including copies of the City Department’s surveillance technology impact report and, if applicable, Technology-Specific Surveillance Use Policy, to the Boston City Council for review.
(c) The Boston City Council shall have 60 days from the date of submission to approve or deny a request by majority vote for the acquisition or use of surveillance technology. If the Boston City Council does not approve the acquisition or use of surveillance technology, the request shall be sent to the Surveillance Oversight Advisory Board who will make recommendations to the Mayor. Subsequent to receiving the recommendations from the Surveillance Oversight Advisory Board, the Mayor may, at his or her discretion resubmit a modified request to the Boston City Council for approval.
(d) A surveillance technology impact report submitted shall include all of the following:
(e) Information describing the surveillance technology and how it works;
(f) Information on the proposed purpose(s) for the surveillance technology;
(g) Information describing the kind of surveillance the surveillance technology will conduct and what surveillance data will be gathered, including a detailed accounting of which entities may have access to any surveillance data, under what circumstances (e.g., ongoing automated access, subject to an informal request, subject to subpoena, subject to a warrant and the like);
(h) The location(s) the surveillance technology may be deployed and when;
(i) A description of the privacy and anonymity rights affected and a mitigation plan describing how the Department’s use of the equipment will be regulated to protect privacy and anonymity, and to limit the risk of abuse;
(j) The potential impact(s) on privacy in the city; the potential impact on the civil rights and liberties of any individuals, communities or groups, including, but not limited to, communities of color or other marginalized communities in the city; and a description of a plan to address these impact(s);
(k) An estimate of the fiscal costs for the surveillance technology, including initial purchase, personnel and other ongoing costs and any current or potential sources of funding; and
(l) An explanation of how the Surveillance Use Policy will apply to this surveillance technology and, if it is not sufficiently applicable, a Technology-Specific Surveillance Use Policy.
(3) A Technology-Specific Surveillance Use Policy shall be required if the purpose, authorized use, data collection, data access, data protection, data retention, public access, third-party data sharing, training or oversight of the requested surveillance technology differ from the standards in the Surveillance Use Policy submitted under division (C) above and this division (D).
(a) A Technology-Specific Surveillance Use Policy shall not conflict with any provision of the city’s Surveillance Use Policy.
(b) To the extent a conflict arises between the provisions of the City’s Surveillance Use Policy and a Technology-Specific Surveillance Use Policy, the city’s Surveillance Use Policy shall govern. A Technology-Specific Surveillance Use Policy shall include all of the elements of the Surveillance Use Policy as outlined in division (B) above.
(4) Any surveillance technology impact report, and, if necessary, Technology-Specific Surveillance Use Policy submitted to the Boston City Council under division (C) above and this division (D) shall be made publicly available on the city’s website upon submission to the Council.
(CBC 1985 16-63.3; Ord. 2021 c. 14; Ord. 2022 c. 7)
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