Establishes the biometric privacy act; requires private entities in possession of biometric identifiers or biometric information to develop a written policy establishing a retention schedule and guidelines for permanently destroying biometric identifiers and biometric information when the initial purpose for collecting or obtaining such identifiers or information has been satisfied or within three years of the individual's last interaction with the private entity, whichever occurs first.
STATE OF NEW YORK
________________________________________________________________________
1362
2023-2024 Regular Sessions
IN ASSEMBLY
January 17, 2023
___________
Introduced by M. of A. GUNTHER, VANEL, EPSTEIN, REYES, SAYEGH, COOK,
ZEBROWSKI, CRUZ, HYNDMAN, GLICK, DICKENS, SMULLEN, J. M. GIGLIO, McDO-
NOUGH, BLANKENBUSH, LUPARDO -- read once and referred to the Committee
on Consumer Affairs and Protection
AN ACT to amend the general business law, in relation to biometric
privacy
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The general business law is amended by adding a new article
2 32-A to read as follows:
3 ARTICLE 32-A
4 BIOMETRIC PRIVACY ACT
5 Section 676. Short title.
6 676-a. Definitions.
7 676-b. Retention; collection; disclosure; destruction.
8 676-c. Right of action.
9 676-d. Construction with other laws.
10 § 676. Short title. This article shall be known and may be cited as
11 the "biometric privacy act".
12 § 676-a. Definitions. As used in this article: 1. "Biometric identifi-
13 er" means a retina or iris scan, fingerprint, voiceprint, or scan of
14 hand or face geometry. Biometric identifiers shall not include writing
15 samples, written signatures, photographs, human biological samples used
16 for valid scientific testing or screening, demographic data, tattoo
17 descriptions, or physical descriptions such as height, weight, hair
18 color, or eye color. Biometric identifiers shall not include donated
19 body parts as defined in section forty-three hundred of the public
20 health law or blood or serum stored on behalf of recipients or potential
21 recipients of living or cadaveric transplants and obtained or stored by
22 a federally designated organ procurement agency. Biometric identifiers
23 do not include information captured from a patient in a health care
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD01142-01-3
A. 1362 2
1 setting or information collected, used, or stored for health care treat-
2 ment, payment, or operations under the federal Health Insurance Porta-
3 bility and Accountability Act of 1996. Biometric identifiers do not
4 include an X-ray, roentgen process, computed tomography, magnetic reso-
5 nance imaging, positron-emission tomography scan, mammography, or other
6 image or film of the human anatomy used to diagnose, prognose, or treat
7 an illness or other medical condition or to further validate scientific
8 testing or screening.
9 2. "Biometric information" means any information, regardless of how it
10 is captured, converted, stored, or shared, based on an individual's
11 biometric identifier used to identify an individual. Biometric informa-
12 tion shall not include information derived from items or procedures
13 excluded under the definition of biometric identifiers.
14 3. "Confidential and sensitive information" means personal information
15 that can be used to uniquely identify an individual or an individual's
16 account or property which shall include, but shall not be limited to, a
17 genetic marker, genetic testing information, a unique identifier number
18 to locate an account or property, an account number, a personal iden-
19 tification number, a pass code, a driver's license number, or a social
20 security number.
21 4. "Private entity" means any individual, partnership, corporation,
22 limited liability company, association, or other group, however organ-
23 ized. A private entity shall not include a state or local government
24 agency or any court in the state, a clerk of the court, or a judge or
25 justice thereof.
26 5. "Written release" means informed written consent or, in the context
27 of employment, a release executed by an employee as a condition of
28 employment.
29 § 676-b. Retention; collection; disclosure; destruction. 1. A private
30 entity in possession of biometric identifiers or biometric information
31 must develop a written policy, made available to the public, establish-
32 ing a retention schedule and guidelines for permanently destroying biom-
33 etric identifiers and biometric information when the initial purpose for
34 collecting or obtaining such identifiers or information has been satis-
35 fied or within three years of the individual's last interaction with the
36 private entity, whichever occurs first. Absent a valid warrant or
37 subpoena issued by a court of competent jurisdiction, a private entity
38 in possession of biometric identifiers or biometric information must
39 comply with its established retention schedule and destruction guide-
40 lines.
41 2. No private entity may collect, capture, purchase, receive through
42 trade, or otherwise obtain a person's or a customer's biometric identi-
43 fier or biometric information, unless it first:
44 (a) informs the subject or the subject's legally authorized represen-
45 tative in writing that a biometric identifier or biometric information
46 is being collected or stored;
47 (b) informs the subject or the subject's legally authorized represen-
48 tative in writing of the specific purpose and length of term for which a
49 biometric identifier or biometric information is being collected,
50 stored, and used; and
51 (c) receives a written release executed by the subject of the biome-
52 tric identifier or biometric information or the subject's legally
53 authorized representative.
54 3. No private entity in possession of a biometric identifier or biome-
55 tric information may sell, lease, trade, or otherwise profit from a
56 person's or a customer's biometric identifier or biometric information.
A. 1362 3
1 4. No private entity in possession of a biometric identifier or biome-
2 tric information may disclose, redisclose, or otherwise disseminate a
3 person's or a customer's biometric identifier or biometric information
4 unless:
5 (a) the subject of the biometric identifier or biometric information
6 or the subject's legally authorized representative consents to the
7 disclosure or redisclosure;
8 (b) the disclosure or redisclsoure completes a financial transaction
9 requested or authorized by the subject of the biometric identifier or
10 the biometric information or the subject's legally authorized represen-
11 tative;
12 (c) the disclosure or redisclosure is required by federal, state or
13 local law or municipal ordinance; or
14 (d) the disclosure is required pursuant to a valid warrant or subpoena
15 issued by a court of competent jurisdiction.
16 5. A private entity in possession of a biometric identifier or biome-
17 tric information shall:
18 (a) store, transmit, and protect from disclosure all biometric identi-
19 fiers and biometric information using the reasonable standard of care
20 within the private entity's industry; and
21 (b) store, transmit, and protect from disclosure all biometric identi-
22 fiers and biometric information in a manner that is the same as or more
23 protective than the manner in which the private entity stores, trans-
24 mits, and protects other confidential and sensitive information.
25 § 676-c. Right of action. Any person aggrieved by a violation of this
26 article shall have a right of action in supreme court against an offend-
27 ing party. A prevailing party may recover for each violation:
28 1. against a private entity that negligently violates a provision of
29 this article, liquidated damages of one thousand dollars or actual
30 damages, whichever is greater;
31 2. against a private entity that intentionally or recklessly violates
32 a provision of this article, liquidated damages of five thousand dollars
33 or actual damages, whichever is greater;
34 3. reasonable attorneys' fees and costs, including expert witness fees
35 and other litigation expenses; and
36 4. other relief, including an injunction, as the court may deem appro-
37 priate.
38 § 676-d. Construction with other laws. 1. Nothing in this article
39 shall be construed to impact the admission or discovery of biometric
40 identifiers and biometric information in any action of any kind in any
41 court, or before any tribunal, board, agency, or person.
42 2. Nothing in this article shall be construed to conflict with the
43 federal Health Insurance Portability and Accountability Act of 1996.
44 3. Nothing in the article shall be deemed to apply in any manner to a
45 financial institution or an affiliate of a financial institution that is
46 subject to Title V of the federal Gramm-Leach-Bliley Act of 1999.
47 4. Nothing in this article shall be construed to apply to a contrac-
48 tor, subcontractor, or agent of a state agency of local government when
49 working for that state agency of local government.
50 § 2. This act shall take effect on the ninetieth day after it shall
51 have become a law.
