Prohibits the use of biometric surveillance system or biometric surveillance information in places of public accommodation; prohibits entering into any agreement that authorizes any third party to use any biometric surveillance system or biometric surveillance information; provides penalties for violations.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A7625
SPONSOR: Simone TITLE OF BILL:
An act to amend the civil rights law, in relation to prohibiting the use
of biometric surveillance system or biometric surveillance information
in places of public accommodation
PURPOSE::
To safeguard biometric information, the measurable phycological, biolog-
ical, or behavioral characteristics that are attributable to an individ-
ual New Yorker, from surveillance.
SUMMARY OF SPECIFIC PROVISIONS::
Section one of the bill sets forth definitions, bars places and provid-
ers of public accommodation from utilizing biometric surveillance with-
out meeting specific conditions for collection, clarifies that these
provisions are not to apply in instances where biometric information is
used for the sole purpose of user authentication, sets forth penalties
for violations of these provisions and bars biometric information
obtained without meeting these preconditions from being used in criminal
proceedings.
Section 2 is the effective date.
JUSTIFICATION::
Biometric information includes facial characteristics, fingerprint char-
acteristics, hand characteristics, eye characteristics, vocal character-
istics, and any other physical characteristics that can be used, singu-
larly or in combination with each other or with other information, to
establish individual identity. As the use of biometric information for
surveillance purposes becomes increasingly common, concerns have been
raised by advocates for privacy and civil liberties relating to the
effectiveness and ethical implications of such technology.
Perhaps the well-known example of this is facial recognition technology,
which has been shown to be less accurate when analyzing faces of people
of color than when analyzing white faces. A 2018 study from MIT and
Stanford University examining commercially available facial analysis
programs created by three major companies found that the three programs'
rates of error in determining the gender of light-skinned men were never
worse than 0.8%, but the rates of error for dark-skinned women were
significantly higher, with two of the programs showing an error rate of
more than 34%.
The American Civil Liberties Union (ACLU) ran a test of another widely
available facial recognition tool by comparing photos of members of
Congress with a database of mugshots, and the software incorrectly
matched 28 members of Congress with individuals who had been arrested
for a crime. A disproportionate number of the incorrect matches were
members of color.
This evidence of bias and inaccuracy in biometric surveillance is
particularly troubling in the context of law enforcement and security,
where an incorrect match has the potential to have devastating conse-
quences.
This legislation would ensure that racially biased, unreliable biometric
technology is not used by operators of places of public accommodation.
This legislation stipulates that biometric surveillance technology may
not be used to measure the phycological, biological, or behavioral char-
acteristics that are attributable to an individual New Yorker except in
instances where an individual has provided express written consent to be
the subject of such surveillance. All New Yorkers should feel free to
enter a place of public accommodation without fearing that a racially
biased biometric surveillance technology will be collected or used
against them.
LEGISLATIVE HISTORY::
New bill.
FISCAL IMPLICATIONS::
-None.
EFFECTIVE DATE::
This act shall take effect immediately.
STATE OF NEW YORK
________________________________________________________________________
7625
2023-2024 Regular Sessions
IN ASSEMBLY
May 25, 2023
___________
Introduced by M. of A. SIMONE -- read once and referred to the Committee
on Governmental Operations
AN ACT to amend the civil rights law, in relation to prohibiting the use
of biometric surveillance system or biometric surveillance information
in places of public accommodation
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Article 4 of the civil rights law is amended to add a new
2 section 40-h to read as follows:
3 § 40-h. Biometric surveillance. 1. For the purposes of this section:
4 (a) "Biometric information" means any measurable physiological, biolog-
5 ical or behavioral characteristics that are attributable to an individ-
6 ual person, including facial characteristics, fingerprint character-
7 istics, hand characteristics, eye characteristics, vocal
8 characteristics, and any other physical characteristics that can be
9 used, singly or in combination with each other or with other informa-
10 tion, to establish individual identity. Examples of biometric informa-
11 tion include, but are not limited to, fingerprints, handprints, retina
12 and iris patterns, DNA sequence, voice, gait, and facial geometry.
13 (b) "Biometric surveillance" means either of the following, alone or
14 in combination:
15 (i) an automated or semi-automated process by which a person is iden-
16 tified or attempted to be identified based on their biometric informa-
17 tion, including identification of known or unknown individuals or
18 groups; and/or
19 (ii) an automated or semi-automated process that generates, or assists
20 in generating, surveillance information about an individual based on
21 their biometric information.
22 (c) "Biometric surveillance system" means any computer software or
23 application that performs biometric surveillance.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD07865-01-3
A. 7625 2
1 (d) "Surveillance information" means either of the following, alone or
2 in combination:
3 (i) any information about a known or unknown individual, including but
4 not limited to, a person's name, date of birth, gender, aggregated
5 location data, or criminal background; and/or
6 (ii) any information derived from biometric information, including but
7 not limited to, assessments about an individual's sentiment, state of
8 mind or level of dangerousness.
9 (e) "Use" does not include using biometric information to unlock a
10 personal or business device, such as a telephone or laptop computer.
11 2. It shall be unlawful for any person who is the owner, franchisor,
12 franchisee, lessor, lessee, proprietor, manager, superintendent, agent
13 or employee of any place or provider of public accommodation to use any
14 biometric surveillance system or biometric surveillance information or
15 enter into any agreement that authorizes any third party, on behalf of
16 the owner, franchisor, franchisee, lessor, lessee, proprietor, manager,
17 superintendent, agent or employee of any place or provider of public
18 accommodation, to use any biometric surveillance system or biometric
19 surveillance information.
20 3. Nothing in this section shall be construed to prohibit the owner,
21 franchisor, franchisee, lessor, lessee, proprietor, manager, superinten-
22 dent, agent or employee of any place or provider of public accommodation
23 from using biometric surveillance on an electronic device, such as a
24 cell phone or tablet for the sole purpose of user authentication.
25 4. No place or provider of public accommodation may collect, capture,
26 purchase, receive through trade, or otherwise obtain a person's biome-
27 tric information, unless it first:
28 (a) informs the subject or the subject's legally authorized represen-
29 tative in writing that biometric information is being collected or
30 stored;
31 (b) informs the subject or the subject's legally authorized represen-
32 tative in writing of the specific purpose and length of term for which
33 biometric information is being collected, stored, and used; and
34 (c) receives a written release executed by the subject of the biome-
35 tric information or the subject's legally authorized representative; and
36 the subject must provide their consent knowingly and voluntarily through
37 the written release, and giving consent may not be made a condition of
38 provision of a service by a provider of a public accommodation or entry
39 into a place of public accommodation.
40 5. An owner, franchisor, franchisee, lessor, lessee, proprietor,
41 manager, superintendent, agent or employee of any place or provider of
42 public accommodation in possession of biometric information shall:
43 (a) store, transmit, and protect from disclosure all biometric infor-
44 mation using the reasonable standard of care within the industry of the
45 owner, franchisor, franchisee, lessor, lessee, proprietor, manager,
46 superintendent, agent or employee of any place or provider of public
47 accommodation; and
48 (b) store, transmit, and protect from disclosure all biometric infor-
49 mation in a manner that is the same as or more protective than the
50 manner in which the owner, franchisor, franchisee, lessor, lessee,
51 proprietor, manager, superintendent, agent or employee of any place or
52 provider of public accommodation stores, transmits, and protects other
53 confidential and sensitive information.
54 6. (a) Any person who or any agency, bureau, corporation or associ-
55 ation which shall violate any of the provisions of this section or who
56 or which shall aid or incite the violation of any of said provisions
A. 7625 3
1 shall for each and every violation thereof be liable to a penalty of not
2 less than the greater of one thousand dollars of actual damages, to be
3 recovered by the person aggrieved thereby or by any resident of this
4 state, to whom such person shall assign their cause of action, in any
5 court of competent jurisdiction in the county in which the plaintiff or
6 the defendant shall reside.
7 (b) In any action brought under this section, the court shall award
8 reasonable attorneys' fees to a prevailing plaintiff.
9 (c) Upon motion from a criminal defendant, a court shall order that
10 evidence be suppressed or excluded if the court finds that such evidence
11 was obtained in violation of this section.
12 (d) Nothing in this subdivision shall be construed to limit any indi-
13 vidual's rights under state or federal law.
14 7. Severability. If any provision of this section shall be held to be
15 invalid by a court of competent jurisdiction, then such provision shall
16 be considered separately and apart from the remaining provisions, which
17 shall remain in full force and effect.
18 § 2. This law shall take effect immediately.
