SALT LAKE CITY, Utah (March 20, 2024) – Last week, Utah Governor Spencer Cox signed a bill into law that puts limits on warrantless biometric surveillance. This is another advance in Utah’s step-by-step approach to protect privacy and limit the surveillance state.

Sen. Daniel McCay and Rep. Ryan Wilcox introduced Senate Bill 231 (SB231) on Feb. 12. The new law prohibits government entities, including law enforcement agencies, from obtaining biometric surveillance information without a warrant and a publicly available written policy outlining the agency’s use of such biometric surveillance.

Biometric surveillance is defined as “the analysis of surveillance information using biometric software to identify an individual’s identity or location using the individual’s physical attributes or manner.”

This would include iris scans, voice recognition, heart rate scanners, software that analyzes a person’s gait or distinctive movements, etc. The law explicitly excludes facial recognition from the definition of biometric surveillance.

The new law allows warrantless biometric surveillance on “authorized property” including police stations, correction facilities, elementary and secondary schools, courthouses, airports, and other “critical infrastructure.” The law also allows warrantless biometric surveillance in accordance with a judicially recognized exception to the warrant requirement, or if there is a “public safety threat” defined as “a documented reasonable articulable suspicion of a threat to commit a violent felony by a specific individual towards a person, a group of people, or a place; or a threat by a specific individual to commit an offense under Section 76-5-107, Threat of Violence.”

The Senate passed SB231 by a 25-0 vote. The House approved the measure 65-3. With Gov. Cox’s signature, the law will go into effect on May 1.

STEP BY STEP

Utah has some of the best laws limiting government surveillance in the country. The state built these robust privacy protections with a step-by-step strategy that started in 2014.

That year, the Electronic Information Privacy Act was signed into law, making any electronic data obtained by law enforcement without a warrant inadmissible in a criminal proceeding. It also prohibited Utah law enforcement from obtaining phone location data without a warrant.

That same year, the state also restricted warrantless drone surveillance.

In 2019, the state expanded the Electronic Information Privacy Act to ban warrantless access to data stored in the “cloud.”

In 2021, the state expanded the Electronic Information Privacy Act again to require police to get a warrant before accessing communication service provider networks.

In 2022, the state expanded restrictions on drone surveillance to also include “radar, sonar, infrared, or other remote sensing or detection technology.”

Last year, the state put limits on “geofence” location tracking.

The enactment of SB231 further increases restrictions on unwarranted government surveillance in Utah.

This step-by-step approach demonstrates an important strategic point. Significant reforms generally take time and protracted efforts. You don’t generally get everything fixed in a single bill. Most of the time you don’t get a whole loaf of bread in a single legislative session. But with persistence, you can get enough slices of bread over time to make an entire loaf.

IMPACT ON FEDERAL SURVEILLANCE PROGRAMS

The feds can share and tap into vast amounts of information gathered at the state and local level through fusion centers and a system known as the “information sharing environment” or ISE. In other words, stingrays create the potential for the federal government to track the movement of millions of Americans with no warrant, no probable cause, and without the people even knowing it.

Fusion centers were sold as a tool to combat terrorism, but that is not how they are being used. The ACLU pointed to a bipartisan congressional report to demonstrate the true nature of government fusion centers: “They haven’t contributed anything meaningful to counterterrorism efforts. Instead, they have largely served as police surveillance and information sharing nodes for law enforcement efforts targeting the frequent subjects of police attention: Black and brown people, immigrants, dissidents, and the poor.”

Fusion centers operate within the broader ISE. According to its website, the ISE “provides analysts, operators, and investigators with information needed to enhance national security. These analysts, operators, and investigators…have mission needs to collaborate and share information with each other and with private sector partners and our foreign allies.” In other words, ISE serves as a conduit for the sharing of information gathered without a warrant. Known ISE partners include the Office of Director of National Intelligence which oversees 17 federal agencies and organizations, including the NSA. ISE utilizes these partnerships to collect and share data on the millions of unwitting people they track.

Limiting information collected by state and local law enforcement agencies limits the amount of information that can flow into federal databases through fusion centers and the ISE.

Mike Maharrey

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