A00687 Summary:

BILL NOA00687
 
SAME ASSAME AS S00301
 
SPONSORRosenthal L
 
COSPNSRDickens, Barron, Simon, Epstein, Seawright
 
MLTSPNSR
 
 
Imposes requirements for the collection and use of emergency health data and personal information and the use of technology to aid during the COVID-19 public health emergency; requires entities using technology to get consent from individuals and to disclose certain information including the right to privacy and who will have access to the data.
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A00687 Actions:

BILL NOA00687
 
01/06/2021referred to health
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A00687 Committee Votes:

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A00687 Floor Votes:

There are no votes for this bill in this legislative session.
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A00687 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                           687
 
                               2021-2022 Regular Sessions
 
                   IN ASSEMBLY
 
                                       (Prefiled)
 
                                     January 6, 2021
                                       ___________
 
        Introduced  by  M.  of A. L. ROSENTHAL, DICKENS, BARRON, SIMON, EPSTEIN,
          SEAWRIGHT -- read once and referred to the Committee on Health
 
        AN ACT in relation to  the  collection  of  emergency  health  data  and
          personal information and the use of technology to aid during COVID-19;
          and  providing  for  the  repeal of such provision upon the expiration
          thereof
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section 1. For the purposes of this act:
     2    1.  "Collect"  means  to buy, rent, gather, obtain, receive, or access
     3  any personal information pertaining  to  an  individual  by  any  means,
     4  online  or  offline, including but not limited to, receiving information
     5  from the individual or from a third party,  actively  or  passively,  or
     6  obtaining information by observing an individual's behavior.
     7    2. "Covered entity" means any person, including a government entity:
     8    (a)  that  collects, processes, or discloses emergency health data, as
     9  defined in this act, electronically or through communication by wire  or
    10  radio; or
    11    (b)  that  develops  or  operates  a  website, web application, mobile
    12  application, mobile operating system feature, or smart  device  applica-
    13  tion  for  the purpose of tracking, screening, monitoring, contact trac-
    14  ing, or mitigation, or  otherwise  responding  to  the  COVID-19  public
    15  health emergency.
    16    3.  "De-identified  information" means information that cannot reason-
    17  ably identify, relate to, describe, be capable of being associated with,
    18  or be linked, directly or indirectly, to a particular individual, house-
    19  hold, or device.  A covered entity that uses de-identified information:
    20    (a) has implemented technical safeguards that prohibit  re-identifica-
    21  tion of the individual to whom the information may pertain;
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD00299-01-1

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     1    (b)  has  implemented  business  processes  that specifically prohibit
     2  re-identification of the information;
     3    (c)  has  implemented  business  processes  that  prevent  inadvertent
     4  release of de-identified information; and
     5    (d) makes no attempt to re-identify the information.
     6    4. "Disclose" means any action, set of actions, or omission in which a
     7  covered entity makes personal information available to  another  person,
     8  intentionally or unintentionally, including but not limited to, sharing,
     9  publishing,  releasing,  transferring,  disseminating, making available,
    10  selling, leasing, providing access to, failing to restrict access to, or
    11  otherwise communicating orally, in writing, electronically,  or  by  any
    12  other means.
    13    5. "Emergency health data" means data linked or reasonably linkable to
    14  an  individual, household, or device, including data inferred or derived
    15  about the individual, household, or device  from  other  collected  data
    16  provided  such  data is still linked or reasonably linkable to the indi-
    17  vidual, household, or device, that concerns the public  COVID-19  health
    18  emergency. Such data includes:
    19    (a)  Information that reveals the past, present, or future physical or
    20  behavioral health or condition of, or provision  of  healthcare  to,  an
    21  individual including:
    22    (i) data derived from the testing or examination;
    23    (ii)  whether  or not an individual has contracted or been tested for,
    24  or an estimate of  the  likelihood  that  a  particular  individual  may
    25  contract, such disease or disorder; and
    26    (iii) genetic data, biological samples and biometrics; and
    27    (b)  Other  data  collected in conjunction with other emergency health
    28  data that can be used to infer health status, health  history,  location
    29  or associations, including:
    30    (i) geolocation data, when such term means data capable of determining
    31  the  past  or  present  precise  physical location of an individual at a
    32  specific point in time, taking account of population densities,  includ-
    33  ing  cell-site  location  information,  triangulation  data derived from
    34  nearby wireless or  radio  frequency  networks  and  global  positioning
    35  system data;
    36    (ii)  proximity data, when such term means information that identifies
    37  or estimates the past or present physical proximity of one individual or
    38  device to another, including information derived from  Bluetooth,  audio
    39  signatures, nearby wireless networks, and near field communications;
    40    (iii) demographic data;
    41    (iv)  contact information for identifiable individuals or a history of
    42  the individual's contacts over a period of time, such as an address book
    43  or call log; and
    44    (v) any other data collected from a personal device.
    45    6. "Individual" means a natural person whom the covered  entity  knows
    46  or has reason to know is located in New York state.
    47    7.  "Personal  information" means information that identifies, relates
    48  to, describes, is capable of being associated with, or could  reasonably
    49  be  linked,  directly  or  indirectly,  with  a particular individual or
    50  household, or device.
    51    8. "Process" means  any  operation  or  set  of  operations  that  are
    52  performed on personal data by either automated or not automated means.
    53    9.  "Public  health  authority" means the New York state department of
    54  health, a county health department or the New York  city  department  of
    55  health and mental hygiene, or a person or entity acting under a grant of
    56  authority  from  or  contract  with  such  public  agency, including the

        A. 687                              3
 
     1  employees or agents of such public agency or its contractors or  persons
     2  to  entities  to  whom it has granted authority, that is responsible for
     3  public health matters as part of its official mandate.
     4    § 2. Individual rights.
     5    1. The individual's right to opt-in. (a) A covered entity shall obtain
     6  freely given, specific, informed, and unambiguous opt-in consent from an
     7  individual to:
     8    (i)  process the individual's personal information or emergency health
     9  data; and
    10    (ii) make any changes in the processing of the  individual's  personal
    11  information or emergency health data.
    12    (b)  It shall be unlawful for a covered entity to collect, process, or
    13  disclose emergency health data or personal information unless:
    14    (i) the individual to whom the data pertains has freely given, specif-
    15  ic, informed, and unambiguous consent to such collection, processing, or
    16  disclosure; or
    17    (ii) such collection, processing, or disclosure is necessary  and  for
    18  the sole purpose of:
    19    (A)  protecting  against  malicious, deceptive, fraudulent, or illegal
    20  activity; or
    21    (B) detecting, responding to,  or  preventing  security  incidents  or
    22  threats.
    23    (c) To the extent that a covered entity must process internet protocol
    24  addresses,  system  configuration  information, URLs of referring pages,
    25  locale and language preferences, keystrokes, and other personal informa-
    26  tion in order to obtain individuals' freely given,  specific,  informed,
    27  and unambiguous opt-in consent, the entity:
    28    (i)  shall  only process the personal information necessary to request
    29  freely given, specific, informed, and unambiguous opt-in consent;
    30    (ii) shall process the personal information solely to  request  freely
    31  given, specific, informed, and unambiguous opt-in consent; and
    32    (iii)  shall immediately delete the personal information if consent is
    33  withheld or withdrawn.
    34    2. The individual's right to privacy. (a) All  emergency  health  data
    35  and  personal information shall be collected at a minimum level of iden-
    36  tifiability reasonably needed for  the  completion  of  the  transaction
    37  disclosed  to, affirmatively consented to, and requested by the individ-
    38  ual. For a covered entity using proximity tracing or exposure  notifica-
    39  tion  this  includes  changing  temporary anonymous identifiers at least
    40  once in a 20 minute period.
    41    (b) A covered entity shall not process personal information  or  emer-
    42  gency  health  data beyond what is adequate, relevant, and necessary for
    43  the completion of the transaction disclosed to, affirmatively  consented
    44  to, and requested by the individual.
    45    (c)  A  covered  entity  shall  not  process  emergency health data or
    46  personal information for any purpose  not  authorized  under  this  act,
    47  including:
    48    (i)  commercial  advertising,  recommendation  for  e-commerce, or the
    49  training of machine learning algorithms related to, or subsequently  for
    50  use in, commercial advertising and e-commerce;
    51    (ii)  soliciting,  offering,  selling,  leasing,  licensing,  renting,
    52  advertising,  marketing,  or  otherwise  commercially  contracting   for
    53  employment, finance, credit, insurance, housing, or education; or
    54    (iii)  segregating, discriminating in, or otherwise making unavailable
    55  the goods, services, facilities,  privileges,  advantages,  or  accommo-
    56  dations of any place of public accommodation (as such term is defined in

        A. 687                              4
 
     1  section  301  of the Americans with Disabilities Act of 1990), except as
     2  authorized by a state or federal government entity for a  public  health
     3  purpose;  provided  that  a  covered  entity shall not process emergency
     4  health  data or personal information to make categorical decisions about
     5  the allocation of care based on disability.
     6    3. Covered entity privacy policy. (a) A covered entity  shall  provide
     7  to  the  individual a privacy policy, at a fourth grade reading level or
     8  below and in the language the entity regularly uses to communicate  with
     9  the  individual,  prior  to  or  at the point of collection of emergency
    10  health data or personal information:
    11    (i) detailing how and for what purpose the  covered  entity  collects,
    12  processes, and discloses emergency health data and personal information;
    13    (ii)  describing the covered entity's data retention and data security
    14  policies and practices for emergency health data and  personal  informa-
    15  tion; and
    16    (iii)  describing  how  an  individual  may exercise rights under this
    17  section.
    18    (b) A covered entity shall create transparency reports, at least  once
    19  every 90 days, that include:
    20    (i)  the number of individuals whose emergency health data or personal
    21  information the covered entity collected or processed;
    22    (ii) the categories of emergency health data and personal  information
    23  collected, processed, or disclosed;
    24    (iii) the purposes for which each category of emergency health data or
    25  personal information was collected, processed, or disclosed;
    26    (iv)  the number of requests for individuals' emergency health data or
    27  personal information, including information on who the emergency  health
    28  data or personal information was disclosed to; and
    29    (v)  the  number  of instances where emergency health data or personal
    30  information was produced, in whole or in part, without  prior,  explicit
    31  consents by the individuals specified in the request.
    32    (c) The covered entity shall make each transparency report persistent-
    33  ly available and readily accessible on such entity's website.
    34    4.  Time  limitation  on  retention.  (a)  Emergency  health  data and
    35  personal information shall be  deleted  when  the  initial  purpose  for
    36  collecting  or obtaining such data has been satisfied or within 30 days,
    37  whichever occurs  first,  except  that  proximity  tracing  or  exposure
    38  notification data which shall be automatically deleted every 14 days.
    39    (b) This subdivision shall not apply to de-identified information.
    40    5.  Access  rights. (a) Emergency health data and personal information
    41  shall be disclosed only as necessary to provide the service requested by
    42  an individual.
    43    (b) A covered entity may  share  aggregate,  de-identified  data  with
    44  public health authorities.
    45    (c)  A  covered  entity  shall  not  disclose emergency health data or
    46  personal information to  a  third  party  unless  that  third  party  is
    47  contractually  bound  to the covered entity to meet the same privacy and
    48  security obligations as the covered entity.
    49    (d) No covered entity  in  possession  of  emergency  health  data  or
    50  personal  information may disclose, redisclose, or otherwise disseminate
    51  an individual's emergency health data or personal information unless the
    52  subject of the emergency health data  or  personal  information  or  the
    53  subject's  legally  authorized representative consents in writing to the
    54  disclosure or redisclosure.
    55    (e) Without consent under subdivision one of this  section,  emergency
    56  health  data,  personal  information, and any evidence derived therefrom

        A. 687                              5
 
     1  shall not be subject to or provided in response to any legal process  or
     2  be  admissible  for any purpose in any judicial or administrative action
     3  or proceeding.
     4    (f)  Individuals  shall  have the right to access the emergency health
     5  data and personal information collected on them and correct any  inaccu-
     6  racies.
     7    (i)  A  covered  entity  must  comply  with an individual's request to
     8  correct emergency health data or personal information not later than  30
     9  days after receiving a verifiable request from the individual or, in the
    10  case of a minor, the individual's parent or guardian.
    11    (ii)  Where  the covered entity has reasonable doubts or cannot verify
    12  the identity of the individual making a request  under  this  paragraph,
    13  the  covered entity may request additional information necessary for the
    14  specific purpose of confirming the identity of the individual.  In  such
    15  cases, the additional information shall not be processed for any purpose
    16  other  than verifying the identity of the individual and must be deleted
    17  immediately upon verification or failure to verify the individual.
    18    § 3. 1. A covered entity shall implement reasonable measures to ensure
    19  confidentiality, integrity, and availability of  emergency  health  data
    20  and personal information.
    21    2.  A  covered  entity  that collects an individual's emergency health
    22  data or personal information shall  implement  and  maintain  reasonable
    23  security  procedures  and practices, including administrative, physical,
    24  and technical safeguards, appropriate to the nature of  the  information
    25  and  the  purposes  for  which  that  information  will be processed, to
    26  protect  that  information  from  unauthorized  processing,  disclosure,
    27  access, destruction, or modification.
    28    3.  A  covered  entity shall limit access to emergency health data and
    29  personal information to authorized essential personnel whose use of  the
    30  data  is  reasonably necessary to operate the program and record who has
    31  accessed emergency health data or  personal  information,  the  date  of
    32  access, and for what purposes.
    33    §  4.  1.  All  covered  entities  shall  be  subject  to  annual data
    34  protection audits, conducted by a neutral third party auditor,  evaluat-
    35  ing  the  technology  utilized and the development processes for statis-
    36  tical impacts on classes protected under section 296 of  article  15  of
    37  the  executive law, as well as for impacts on privacy and security, that
    38  includes at a minimum:
    39    (a) a detailed description of the  technology,  its  design,  and  its
    40  purpose;
    41    (b) an assessment of the relative benefits and costs of the technology
    42  in  light of its purpose, taking into account relevant factors including
    43  data minimization practices; the duration for which personal information
    44  and emergency health data and the  results  of  the  data  analysis  are
    45  stored;  what  information  about  the  technology  is  available to the
    46  public; and the recipients of the results of the technology;
    47    (c) an assessment of the risk of harm posed  by  the  technology;  the
    48  risk  that  the  technology  may  result in or contribute to inaccurate,
    49  unfair, biased, or discriminatory decisions; the risk that the technolo-
    50  gy may dissuade New Yorkers from participating  in  contact  tracing  or
    51  obtaining  medical  testing  or  treatment;  and  the risk that personal
    52  information or emergency health data can be accessed by  third  parties,
    53  including,  but  not  limited to law enforcement agencies and U.S. Immi-
    54  gration and Customs Enforcement; and

        A. 687                              6
 
     1    (d) the measures the covered entity will employ to minimize the  risks
     2  described in paragraph (c) of this subdivision, including technological,
     3  legal and physical safeguards;
     4    (e)  an  assessment of whether the covered entity has followed through
     5  on the promises made in its privacy notice regarding collection, access,
     6  sharing, retention, deletion and sunsetting; and
     7    (f) if the technology utilizes machine-learning systems, a description
     8  of the training data information.
     9    2. The covered entity shall make the audit persistently available  and
    10  readily accessible on such entity's website.
    11    3. The cost of the audit shall be paid by the covered entity.
    12    §  5.  The  attorney  general  may  bring an action in the name of the
    13  state, or as parens patriae on behalf of persons residing in the  state,
    14  to  enforce  the  provisions  of  this  act. In an action brought by the
    15  attorney general, the  court  may  award  injunctive  relief,  including
    16  preliminary  injunctions,  to  prevent  further violations of and compel
    17  compliance with this act; civil penalties  up  to  twenty-five  thousand
    18  dollars  per  violation  or  up to four percent of annual revenue; other
    19  appropriate relief, including restitution, to redress harms to  individ-
    20  uals  or  to mitigate all substantial risk of harm; and any other relief
    21  the court determines.
    22    § 6. Severability. If any clause,  sentence,  paragraph,  subdivision,
    23  section  or part of this act shall be adjudged by any court of competent
    24  jurisdiction to be invalid, such judgment shall not affect,  impair,  or
    25  invalidate the remainder thereof, but shall be confined in its operation
    26  to the clause, sentence, paragraph, subdivision, section or part thereof
    27  directly  involved  in the controversy in which such judgment shall have
    28  been rendered. It is hereby declared to be the intent of the legislature
    29  that this act would have been enacted even if  such  invalid  provisions
    30  had not been included herein.
    31    §  7.  This  act shall take effect on the thirtieth day after it shall
    32  have become a law and shall expire and be  deemed  repealed  January  1,
    33  2024.
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