Maryland’s Facial Recognition Technology Statute

I recently published a blog on Johnson v. State, 2025 WL 2237582, at *1 (Appl. Ct. Md. Aug. 6, 2025)(unreported), titled Criminal Conviction Reversed After State Failed to Timely & Fully Disclose its Use of a Type of Artificial Intelligence (Aug. 1, 2025).  In that decision, the Court reversed a criminal conviction for failure of the State to timely and fully disclose its use of Facial Recognition Technology (“FRT”), a form of artificial intelligence.  The decision was based on the State’s admitted violation of its discovery obligations.

The Johnson Court did not rely on Title 2, Subtitle 5, of the Criminal Procedure Article of the Maryland Code.  That Subtitle addresses FRT.

Under §2-501:

“Facial recognition technology” means a computer program, a service, or any other technology that analyzes facial features and is used by or at the direction of a law enforcement agency for the identification, verification, or persistent tracking of individuals in still or video images for use in criminal investigations.

Section 2-502 states when results of FRT may be used as evidence. The general rule is that FRT may not be introduced except as provided by statute.  It may be introduced “in connection with a criminal proceeding only for the purpose of establishing probable cause or positive identification: (i) in connection with the issuance of a warrant; or (ii) at a preliminary hearing.”  And, importantly:

Subject to subparagraph (ii) of this paragraph, results generated by facial recognition technology may not serve as the sole basis to establish probable cause or the positive identification of an individual in a criminal investigation or proceeding.

(ii) Probable cause or positive identification may be established using facial recognition technology only if the results are supported by additional, independently obtained evidence establishing probable cause or a positive identification.

Section 2-503 addresses when FRT may be used to investigate a crime.  It states that FRT may not be used in furtherance of a criminal investigation other than for twelve enumerated crimes, such as crimes of violence, human trafficking, and child pornography, among others.  In §2-503(a)(1)(ii-v), there are also limits on use of FRT to analyze an image or recording of an individual.  Subsection (a)(2) defines what images may be used as a comparator, such as Motor Vehicle Administration records.  Subsection (b) imposes additional limitations, such as prohibiting use of FRT to investigate a person’s political or social beliefs.  Subsection (c) states:

(1) Except as provided in paragraph (2) of this subsection and subject to paragraph (3) of this subsection, a result generated by facial recognition technology in violation of this section and all other evidence subsequently derived from the result may not be introduced by the State for any purpose in a criminal court proceeding or in a juvenile court proceeding under Title 3, Subtitle 8A of the Courts Article.

(2) Evidence derived from a result generated in violation of subsection (a)(1) of this section may be introduced for a purpose described in § 2-502 of this subtitle if the court finds that the evidence would otherwise be subject to a legally valid exception to the exclusionary rule.

(3) This subsection may not be construed to allow the use of a result generated using facial recognition technology to be introduced as evidence in a criminal trial or in an adjudicatory hearing held under § 3-8A-18 of the Courts Article.

Section 2-504 addresses disclosure of the use of FRT.

The State shall disclose, in accordance with the Maryland Rules regarding discovery, whether facial recognition technology has been used in an investigation relevant to a criminal court proceeding or juvenile court proceeding under Title 3, Subtitle 8A of the Courts Article, the name of each facial recognition system used, a description and the names of the databases searched, and all results generated from the use of the facial recognition technology that led to further investigative action for each facial recognition system and for each database searched.

Under §2-505, a law enforcement agency that uses FRT must designate a responsible employee to oversee and administer its use.  The agency must conduct compliance audits.  Police officers who use FRT “shall annually complete training administered by the Department of Public Safety and Correctional Services under § 2-506 of this subtitle.”

Section 2-506 directs the State Police to adopt a model statewide policy regarding the use of FRT. The Department of Public Safety and Correctional Services is tasked with developing a training program.

Under §2-507:

This subtitle may not be construed to restrict the use of facial recognition technology for the purpose of:

(1) identifying a missing or deceased person or a person who is incapacitated and unable to otherwise provide the person’s own identity;

(2) redacting a recording or an image for release or disclosure to protect the privacy of an individual depicted in a recording or an image;

(3) forensic analysis of electronic media seized by law enforcement in relation to a specific investigation if the person identified in the electronic media is not the subject of criminal charges resulting from the forensic analysis;

(4) enhancing security systems for preventing unauthorized access to information, goods, materials, areas, or other properties under the custody or care of a law enforcement agency; or

(5) conducting otherwise legitimate activity unrelated to a criminal investigation

Section 2-508 mandates a data management policy governing FRT and §2-510 imposes reporting requirements.

Section 2-509 provides that: “A person may bring a civil action against a law enforcement agency to compel compliance with this subtitle.”