A06042 Summary:

BILL NOA06042
 
SAME ASNo Same As
 
SPONSORCruz
 
COSPNSR
 
MLTSPNSR
 
Add Art 39-FF §§899-cc - 899-ii, §350-a-1, Gen Bus L; amd §292, add §296-e, Exec L; amd §§165 & 8, St Fin L; amd §814, Ed L
 
Enacts the "digital fairness act".
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A06042 Actions:

BILL NOA06042
 
03/05/2021referred to consumer affairs and protection
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A06042 Committee Votes:

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A06042 Floor Votes:

There are no votes for this bill in this legislative session.
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A06042 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          6042
 
                               2021-2022 Regular Sessions
 
                   IN ASSEMBLY
 
                                      March 5, 2021
                                       ___________
 
        Introduced  by  M. of A. CRUZ -- read once and referred to the Committee
          on Consumer Affairs and Protection
 
        AN ACT to amend the general business law, the executive law,  the  state
          finance  law  and  the  education  law,  in  relation  to enacting the
          "digital fairness act"

          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section  1.  Short  title. This act shall be known and may be cited as
     2  the "digital fairness act".
     3    §  2.  Legislative  findings.  The  legislature  finds  that   privacy
     4  violations  and  misuse  of  personal information in the digital age can
     5  lead to a  range  of  harms,  including  discrimination  in  employment,
     6  healthcare,  housing,  access  to  credit, and other areas; unfair price
     7  discrimination; and financial, emotional, or reputational harms.  Misuse
     8  of  personal  information  can limit awareness of and access to opportu-
     9  nities, exacerbate information disparities, erode public trust and  free
    10  expression,  disincentivize  individuals  from  participating  fully  in
    11  digital life and utilizing online services, and  increase  the  risk  of
    12  future harms.
    13    The legislature additionally finds that individuals in New York state,
    14  like individuals across the nation, do not know or consent to the manner
    15  in  which  entities  collect,  use,  retain,  share,  and monetize their
    16  personal information. This misunderstanding is, at least in part, due to
    17  obfuscation on the part of the entities leveraging individuals' personal
    18  information. Researchers at Carnegie Mellon found  that  it  would  take
    19  seventy-six  work  days for individuals to read all of the privacy poli-
    20  cies they encounter in a year. Although the advertising industry  devel-
    21  oped  a  common logo and slogan to notify individuals of the opportunity
    22  to opt-out of  targeted  advertising,  following  market  research,  the
    23  industry  selected  the slogan and logo that few individuals understood,
    24  seemingly to discourage opt-out.

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD09748-03-1

        A. 6042                             2
 
     1    The legislature further finds that entities that collect, use, retain,
     2  share, and monetize  personal  information  have  specialized  knowledge
     3  about  the  algorithms  and  data security measures they use, as well as
     4  about how they collect, use, retain, share, and monetize personal infor-
     5  mation,  that the average individual is unlikely to understand.  Just as
     6  banks, lawyers, and medical providers,  given  their  specialized  know-
     7  ledge,  have  special  obligations  to  individuals, entities collecting
     8  intimate personal information in the digital  age  and  benefiting  from
     9  similarly specialized knowledge should have similar obligations.
    10    The  legislature  also  finds that individuals in New York state, like
    11  individuals across the country, value privacy and wish  to  control  who
    12  has  access  to their personal information.  Ninety-two percent of Face-
    13  book users alter the social network's default privacy  settings,  demon-
    14  strating that they wish to choose with whom they share personal informa-
    15  tion.    Similarly,  ninety-two  percent  of Americans believe companies
    16  should obtain individuals' permission before sharing  or  selling  their
    17  personal information.
    18    The  legislature  additionally  finds  that  biometric  information is
    19  unlike  other  unique  identifiers,  because  biometric  information  is
    20  biologically  unique  to  an individual and cannot be changed if compro-
    21  mised. As a result, biometric information merits special protections.
    22    The legislature also finds that it has had a decades long interest  in
    23  protecting  New  Yorkers' privacy. For example, since 1996, section 79-l
    24  of the New York civil rights law has protected the  privacy  of  genetic
    25  information,  requiring  an individual's informed, written consent prior
    26  to genetic testing and  restricting  the  disclosure  and  retention  of
    27  genetic information.
    28    The  legislature  further  finds  that  the  use of automated decision
    29  systems to make core government and business decisions  raises  concerns
    30  around  due process, fairness, accountability, and transparency, as well
    31  as other civil rights and liberties.   Reliance  on  automated  decision
    32  systems  without  adequate  transparency,  oversight,  or safeguards can
    33  undermine market predictability, harm consumers, and  deny  historically
    34  disadvantaged  or  vulnerable  groups  the  full  measure of their civil
    35  rights and liberties.
    36    The legislature finally finds that New York has the  longest  standing
    37  human  rights law in the nation and that the state has prioritized root-
    38  ing out discrimination in employment, housing, credit,  public  accommo-
    39  dations,  and  educational  institutions  based  on  age, race, national
    40  origin, sex, sexual orientation, gender identity, disability, and  other
    41  protected classes. Ensuring that sophisticated algorithms cannot be used
    42  to  circumvent  the  state's civil and human rights laws is an important
    43  exercise of the legislature's authority.
    44    § 3. The general business law is amended by adding a new article 39-FF
    45  to read as follows:
    46                                ARTICLE 39-FF
    47                            DIGITAL FAIRNESS ACT
    48  Section 899-cc. Definitions.
    49          899-dd. Meaningful notice.
    50          899-ee. Opt-in consent.
    51          899-ff. Affirmative obligations.
    52          899-gg. Biometric information; retention, collection, disclosure
    53                    and destruction.
    54          899-hh. Surreptitious surveillance.
    55          899-ii. Enforcement.

        A. 6042                             3
 
     1    § 899-cc. Definitions. For the purposes of this article, the following
     2  terms shall have the following meanings:
     3    1.  "Biometric information" shall mean a record of one or more measur-
     4  able biological or behavioral characteristics that can be used singular-
     5  ly or in combination with other characteristics, or with other  informa-
     6  tion,  for  automated  recognition  of  a  known  or unknown individual.
     7  Examples of such term shall include, but not be  limited  to:    finger-
     8  prints,  retina  and  iris  patterns,  voiceprints, DNA sequence, facial
     9  characteristics, gait, handwriting, key stroke dynamics, and mouse move-
    10  ments.
    11    2. "Collect" shall mean to buy,  rent,  gather,  obtain,  receive,  or
    12  access  any  personal  information  pertaining  to  an individual by any
    13  means, online or offline, including but not limited to, receiving infor-
    14  mation from the individual or from a third party, actively or passively,
    15  or obtaining information by observing such individual's behavior.
    16    3. "Conduct business in New York" shall mean to produce,  solicit,  or
    17  offer  for  use  or  sale any product or service in a manner that inten-
    18  tionally targets, or may reasonably be expected  to  contact,  New  York
    19  residents,  or to engage in any activity that would subject the actor to
    20  personal jurisdiction under section three hundred one or  section  three
    21  hundred  two  of  the  civil  practice law and rules, whether or not for
    22  profit.
    23    4. "Covered entity" shall mean a legal entity that  conducts  business
    24  in  New York state and as part of such business, processes and maintains
    25  the personal information of five hundred or more unique individuals.
    26    5. "Data processor" shall mean a person that processes personal infor-
    27  mation on behalf of a covered entity.
    28    6. "De-identified information"  shall  mean  information  that  cannot
    29  reasonably identify, relate to, describe, be capable of being associated
    30  with,  or be linked, directly or indirectly, to a particular individual;
    31  provided that a covered entity that uses de-identified information:
    32    (a) Has implemented technical safeguards that  prohibit  reidentifica-
    33  tion of the individual to whom such information may pertain;
    34    (b)  Has  implemented  business  processes  that specifically prohibit
    35  reidentification of such information;
    36    (c)  Has  implemented  business  processes  that  prevent  inadvertent
    37  release of such de-identified information; and
    38    (d) Makes no attempt to reidentify such information.
    39    7.  "Device" shall mean a product that is capable of sending, routing,
    40  or receiving communications to or from another device and  intended  for
    41  use  by a single individual or single household or, if used outside of a
    42  home, for use by the general public.
    43    8. "Device fingerprinting" shall mean information passively  collected
    44  for  the purpose of identifying a device through a combination of device
    45  identifiers, wireless or cellular networks, language settings,  software
    46  versions,  time  zone, frequently visited sites, drivers, or other spec-
    47  ifications.
    48    9. "Device indicator" shall mean any identifier tied to an individual,
    49  household, or device, including but not limited to a combinatory  method
    50  such as device fingerprinting or a technical identifier such as internet
    51  protocol address, device advertisement identifier, serial number, inter-
    52  national mobile equipment identity, media access control address, cookie
    53  identifier,  or  subscriber  identification  module  card serial number,
    54  whether resettable or persistent.
    55    10. "Disclose" shall mean any action, set of actions, or  omission  in
    56  which  a  covered  entity, data processor, or third party makes personal

        A. 6042                             4
 
     1  information available  to  another  person,  intentionally  or  uninten-
     2  tionally,  including but not limited to, sharing, publishing, releasing,
     3  transferring, disseminating, making available, selling, leasing, provid-
     4  ing access to, failing to restrict access to, or otherwise communicating
     5  orally, in writing, electronically, or by any other means.
     6    11.  "Division"  shall  mean  the consumer protection division, unless
     7  context clearly indicates otherwise.
     8    12. "Governmental entity" shall mean a department  or  agency  of  the
     9  state or a political subdivision thereof, or an individual acting for or
    10  on behalf of the state or a political subdivision thereof.
    11    13. "Harm" shall mean potential or realized adverse consequences to an
    12  individual or to society, including but not limited to:
    13    (a) Direct or indirect financial harm.
    14    (b) Physical harm or threats to persons or property, including but not
    15  limited  to  bias-related  crimes  and  threats,  harassment, and sexual
    16  harassment.
    17    (c)  Discrimination  in  goods,  services,  or  economic  opportunity,
    18  including  but  not  limited  to housing, employment, credit, insurance,
    19  education, or health care on the basis of  an  individual  or  class  of
    20  individuals' actual or perceived age, race, national origin, sex, sexual
    21  orientation,  gender  identity,  marital  status,  disability,  military
    22  status, and/or membership in another protected class.
    23    (d) Interference with or  surveillance  of  first  amendment-protected
    24  activities by state actors.
    25    (e)  Interference  with  the  right  to  vote  or  with  free and fair
    26  elections.
    27    (f) Interference with due process or equal protection under law.
    28    (g) Loss of individual control over personal information, nonconsensu-
    29  al sharing of private information, and data breach.
    30    (h) The nonconsensual capture of information or communications  within
    31  an individual's home or where an individual has a reasonable expectation
    32  of seclusion or access control.
    33    (i) Other effects on an individual that may not be reasonably foresee-
    34  able  to,  contemplated  by,  or  expected by the individual to whom the
    35  personal information relates, that are nevertheless reasonably foreseea-
    36  ble, contemplated by, or expected by the covered entity  that  alter  or
    37  limit such individual's choices or predetermine results.
    38    14.  "Individual"  shall  mean  a natural person whom a covered entity
    39  knows or has reason to know is located within New York state.
    40    15. "Personal information" shall mean information that is captured  in
    41  exchange  for  any  kind of value provided to the individual to whom the
    42  information pertains, including but not limited to a  good  or  service,
    43  the  placement  of targeted advertisements, or a membership; as a result
    44  of an individual, household, or device's establishment or maintenance of
    45  an account with a covered entity; or  as  a  result  of  an  individual,
    46  household,  or  device's  interaction  with  a covered entity. Such term
    47  shall also include information that directly or  indirectly  identifies,
    48  relates  to,  describes,  is  capable of being associated with, or could
    49  reasonably be linked to a particular individual,  household,  or  device
    50  that  provides  or  provided information to a covered entity in exchange
    51  for any kind of value provided to the individual to whom  such  informa-
    52  tion  pertains or that established, maintained, establishes or maintains
    53  an account with a covered entity. Information is reasonably linkable  to
    54  an  individual,  household, or device if it can be used on its own or in
    55  combination with other reasonably available information,  regardless  of

        A. 6042                             5
 
     1  whether such other information is held by the covered entity, to identi-
     2  fy an individual, household, or device.
     3    16.  "Monetize"  shall  mean to sell, rent, release, disclose, dissem-
     4  inate, make available, transfer, or  otherwise  communicate  orally,  in
     5  writing,  or  by  electronic  or  other  means, an individual's personal
     6  information by a covered entity, a third party, or a data  processor  in
     7  exchange  for monetary or other consideration, as well as to leverage or
     8  use an individual's personal information to place a targeted  advertise-
     9  ment  or  to  otherwise  profit, regardless of whether such individual's
    10  personal information changes hands.
    11    17. "Process" or "processing" shall mean any action or set of  actions
    12  performed on or with personal information, including but not limited to,
    13  collection,  access,  use,  retention,  sharing,  monetizing,  analysis,
    14  creation, generation,  derivation,  decision-making,  recording,  alter-
    15  nation,  organization,  structuring,  storage, disclosure, transmission,
    16  sale, licensing, disposal, destruction, de-identifying, or other  handl-
    17  ing of personal information.
    18    18.  "Reasonably understandable" shall mean of a length and complexity
    19  such that an individual with a fourth-grade  reading  level,  as  estab-
    20  lished  by  the  New York department of education's fourth grade English
    21  language arts learning standards, can read and comprehend  the  contents
    22  in two minutes or less.
    23    19.  "Targeted  advertisement" shall mean an advertisement directed to
    24  an individual where the advertisement  is  selected  based  on  personal
    25  information obtained or inferred over time from such individual's or the
    26  individual's device's activities, communications, or associations across
    27  websites,  applications,  services, or covered entities. Such term shall
    28  not include advertisements directed to an individual solely  based  upon
    29  the  individual's  current  visit to a website, application, service, or
    30  covered entity, or in response to the individual's request for  informa-
    31  tion or feedback.
    32    20. "Third party" shall mean, with respect to an individual's personal
    33  information, any person that is not the covered entity or a data proces-
    34  sor.
    35    21.  "Use  model"  shall  mean  a discrete purpose for which collected
    36  personal information is to be processed, including but not  limited  to,
    37  first  party  marketing, third party marketing, first party research and
    38  development, third party research and development, and product  improve-
    39  ment.
    40    §  899-dd.  Meaningful notice. 1. In addition to any long form privacy
    41  policy, each covered entity shall make  persistently  and  conspicuously
    42  available a short-form privacy notice--
    43    (a)  That an individual must interact with upon the individual's first
    44  visit to the covered entity's website or first use of the covered  enti-
    45  ty's mobile application;
    46    (b)  Persistently  available and readily accessible on a covered enti-
    47  ty's website or mobile application;
    48    (c) At the physical place of business or any offline equivalent  main-
    49  tained by the covered entity; and
    50    (d)  At  or  prior  to  the  point  of  sale  of a product or service,
    51  subscription to a service, or establishment  of  an  account  with,  the
    52  covered  entity or if there is no such sale, subscription, or establish-
    53  ment, before the individual uses such product or service of the  covered
    54  entity.
    55    2.  The  short-form privacy notice required by subdivision one of this
    56  section shall:

        A. 6042                             6
 
     1    (a) Be clear, concise, well-organized, and complete;
     2    (b) Be clear and prominent in appearance;
     3    (c) Use clear and plain language;
     4    (d)  Use  visualizations where appropriate to make complex information
     5  understandable by the ordinary user;
     6    (e) Be reasonably understandable;
     7    (f) Be clearly distinguishable from other matters;
     8    (g) Not contain any unrelated, confusing,  or  contradictory  informa-
     9  tion;
    10    (h)  Be  no  more than five hundred words, excluding the list of third
    11  parties required under  paragraph  (f)  of  subdivision  three  of  this
    12  section; and
    13    (i) Be provided free of charge.
    14    3.  The  short-form privacy notice required by subdivision one of this
    15  section shall include:
    16    (a) What personal information is being processed;
    17    (b) The manner in which personal information is processed;
    18    (c) How and for what purpose the  covered  entity  processes  personal
    19  information;
    20    (d) How long personal information will be retained;
    21    (e) Whether and how the covered entity monetizes personal information;
    22    (f)  To  which  third  parties  the  covered entity discloses personal
    23  information and for what purposes; and
    24    (g) How the covered entity collects  personal  information,  including
    25  offline  practices, when the individual is not directly interacting with
    26  such covered entity.
    27    4. The list of third parties required under paragraph (f) of  subdivi-
    28  sion  three of this section, shall be offset by at least two line breaks
    29  from the rest of the short-form privacy notice required  under  subdivi-
    30  sion one of this section.
    31    5.  Within  one  year  of  the enactment of this article, the consumer
    32  protection division  shall  establish  standardized  short-form  privacy
    33  notices  that comply with this section. A covered entity may satisfy the
    34  short-form privacy notice  requirements  by  adopting  the  standardized
    35  short-form privacy notice established by the division.
    36    6.  Within  one  year  of  the enactment of this article, the consumer
    37  protection division shall develop a recognizable  and  uniform  logo  or
    38  button  to promote individual awareness of the short-form privacy notice
    39  that may be used by covered entities.
    40    7. The consumer protection division may  promulgate  rules  and  regu-
    41  lations  specifying additional requirements for the format and substance
    42  of such short-form privacy notices.
    43    § 899-ee. Opt-in consent. 1. A  covered  entity  shall  obtain  freely
    44  given,  specific, informed, and unambiguous opt-in consent from an indi-
    45  vidual to:
    46    (a) Process such individual's personal information; and
    47    (b) Make any changes in the processing of such  individual's  informa-
    48  tion that necessitate a change to the entity's short-form privacy notice
    49  required under section eight hundred ninety-nine-dd of this article.
    50    2.  Within  one  year  of  the enactment of this article, the division
    51  shall promulgate rules and regulations grouping different types of proc-
    52  essing of personal information by use model  and  permitting  a  covered
    53  entity  to  simultaneously  obtain freely given, specific, informed, and
    54  unambiguous opt-in consent from an individual for multiple  transactions
    55  of the same use model.

        A. 6042                             7
 
     1    3.  A  covered entity shall ensure that the option to withhold consent
     2  is displayed as  clearly  and  prominently  as  the  option  to  provide
     3  consent.
     4    4.  A  covered  entity  shall provide a mechanism for an individual to
     5  withdraw previously-given consent at any time. Such mechanism shall make
     6  it as easy for an individual to withdraw their consent as it is for such
     7  individual to provide consent.
     8    5. A covered entity shall not be  required  to  obtain  freely  given,
     9  specific,  informed,  and  unambiguous opt-in consent from an individual
    10  under subdivision one of this section if:
    11    (a) The processing is necessary for the primary purpose of the  trans-
    12  action for which personal information is provided, such as the provision
    13  of  financial  information  to complete a purchase or the provision of a
    14  mailing address for package delivery; provided that the personal  infor-
    15  mation shall not be processed or monetized for any other purpose without
    16  the  freely  given,  specific,  informed, and unambiguous opt-in consent
    17  from the individual to whom the personal information pertains.
    18    (b) The covered entity, in good  faith,  believes  that  an  emergency
    19  presenting  the risk of death or serious physical injury to any individ-
    20  ual requires disclosure, without delay, of personal information relating
    21  to such emergency, the covered entity may disclose the personal informa-
    22  tion relating to such emergency to  a  governmental  entity.  A  covered
    23  entity  that discloses the personal information of an individual without
    24  obtaining opt-in approval shall, within twenty-four  hours,  inform  the
    25  individual   of   the  personal  information  that  the  covered  entity
    26  disclosed, the details of the emergency, and the reasons why the covered
    27  entity needed to use, access, or disclose the personal information.
    28    (c) Processing the personal information is necessary for  engaging  in
    29  public or peer-reviewed scientific, medical, historical, social science,
    30  or statistical research in the public interest that adheres to all other
    31  applicable ethical standards or laws, with informed consent.
    32    (d)  Processing  the  personal  information is necessary for clinical,
    33  treatment, public health,  medical  educational,  medical  training,  or
    34  insurance  purposes, provided that the personal information shall not be
    35  processed or monetized for any other purpose without the  freely  given,
    36  specific,  informed, and unambiguous opt-in consent from such individual
    37  to whom the personal information pertains.
    38    (e) The processing involves only de-identified information.
    39    (f) In response to a warrant issued by a court of competent  jurisdic-
    40  tion  under  the  procedures  described in the federal rules of criminal
    41  procedure or article six hundred ninety of the criminal procedure law.
    42    (g) If required by state or federal law.
    43    6. The division is hereby authorized and directed to conduct  a  study
    44  to  determine the most effective way for entities to obtain individuals'
    45  freely given, specific, informed, and  unambiguous  opt-in  consent  for
    46  each  type  of personal information processing and, to the extent possi-
    47  ble, to avoid notice fatigue.
    48    7. The division may request data and information from covered entities
    49  conducting business in New York state, other New York  state  government
    50  entities  administering  notice and consent regimes, consumer protection
    51  and  privacy  advocates  and  researchers,  internet  standards  setting
    52  bodies,  such as the internet engineering taskforce and the institute of
    53  electrical and electronics engineers,  and  other  relevant  sources  to
    54  effectuate  the  purpose of such study. The division shall receive, upon
    55  request, data from other New York state governmental entities.

        A. 6042                             8
 
     1    8. Within one year of the enactment  of  this  article,  the  division
     2  shall  promulgate  rules  and regulations specifying the manner in which
     3  covered entities  shall  obtain  individuals'  freely  given,  specific,
     4  informed,  and  unambiguous  opt-in  consent  for  each type of personal
     5  information  processing,  as well as the manner in which individuals may
     6  withdraw their consent at any time. Such  rules  and  regulations  shall
     7  require  covered  entities to make it as easy for an individual to with-
     8  draw their consent as it is for the individual to provide consent.
     9    9. Under no circumstances shall an  individual's  interaction  with  a
    10  covered entity or use of a covered entity's product or service, when the
    11  covered entity has a terms of service or a privacy policy, including the
    12  short-form  privacy  notice required under section eight hundred ninety-
    13  nine-dd of this article, in  and  of  itself  constitute  freely  given,
    14  specific, informed, and unambiguous consent.
    15    10. To the extent that a covered entity must process internet protocol
    16  addresses,  system  configuration  information, URLs of referring pages,
    17  locale and language preferences, keystrokes, and other personal informa-
    18  tion in order to obtain individuals' freely given,  specific,  informed,
    19  and unambiguous opt-in consent, the covered entity shall:
    20    (a)  Only process the personal information necessary to request freely
    21  given, specific, informed, and unambiguous opt-in consent;
    22    (b) Process the personal information solely to request  freely  given,
    23  specific, informed, and unambiguous opt-in consent; and
    24    (c) Immediately delete the personal information if consent is withheld
    25  or withdrawn.
    26    11.  A covered entity shall not refuse to serve an individual who does
    27  not approve the processing of  such  individual's  personal  information
    28  under  this  section, unless the processing is necessary for the primary
    29  purpose of the transaction such individual has requested.
    30    12. A covered entity shall not offer  an  individual  a  program  that
    31  relates  the  price  or  quality  of a product or service to the privacy
    32  protections  afforded  to  the  individual,  including  by  providing  a
    33  discount  or other incentive in exchange for the opt-in approval of such
    34  individual to the processing of such individual's personal  information,
    35  or because an individual declines to exercise the opportunities provided
    36  under  subdivision  two  of section eight hundred ninety-nine-ff of this
    37  article.
    38    13. Notwithstanding subdivision twelve  of  this  section,  a  covered
    39  entity  may, with the individual's freely given, specific, informed, and
    40  unambiguous opt-in consent given pursuant to  this  section,  operate  a
    41  program in which information, products, or services sold to the individ-
    42  ual  are  discounted based on such individual's prior purchases from the
    43  covered entity; provided that the captured personal information shall be
    44  processed solely for the purpose of operating such program.
    45    § 899-ff. Affirmative obligations. 1. Care. (a) A covered entity shall
    46  store, transmit, and protect from disclosure  all  personal  information
    47  using the reasonable standard of care within the covered entity's indus-
    48  try;  and  such  covered  entity shall store, transmit, and protect from
    49  disclosure all personal information in a manner that is the same  as  or
    50  more  protective  than  the  manner  in which the covered entity stores,
    51  transmits, and protects other confidential information.
    52    (b) The division, in consultation with the office of information tech-
    53  nology services and the department of financial  services,  may  develop
    54  appropriate  security standards for personal information. This paragraph
    55  shall preempt paragraph (a) of this subdivision only to the extent  that

        A. 6042                             9
 
     1  the  security standards developed are more protective of personal infor-
     2  mation than the industry standard of care.
     3    2.  Loyalty. (a) Absent freely given, specific, informed, and unambig-
     4  uous opt-in consent from the individual engaging in a transaction with a
     5  covered entity, a covered entity shall not process personal  information
     6  beyond  what  is adequate, relevant, and necessary for the completion of
     7  the transaction requested by such individual.
     8    (b) A covered entity that maintains an individual's personal  informa-
     9  tion  shall  provide  such  individual with a reasonable means to access
    10  their personal information, including  any  information  obtained  about
    11  that  individual  from a third-party, whether online or offline, as well
    12  as information about where or from whom the covered entity obtained  the
    13  personal  information  and  the  names of the third parties to which the
    14  covered entity has disclosed or will disclose the personal information.
    15    (c) A covered entity that maintains an individual's personal  informa-
    16  tion  shall  provide the access to such personal information under para-
    17  graph (b) of this subdivision, in a usable and  searchable  format  that
    18  allows  the  individual  to  transfer  the personal information from one
    19  entity to another entity without hindrance.
    20    (d) A covered entity that maintains an individual's personal  informa-
    21  tion  in  a  non-public  profile  or  account shall delete such personal
    22  information, and any information derived  therefrom,  pertaining  to  an
    23  individual upon such individual's request.
    24    (e)  A  covered  entity shall provide the opportunities required under
    25  paragraphs (b), (c) and (d) of this subdivision, in a form that is:
    26    (i) Clear and conspicuous;
    27    (ii) Made available at no additional cost to the  individual  to  whom
    28  the information pertains; and
    29    (iii)  In a language other than English if the covered entity communi-
    30  cates with the individual to whom the information pertains in such other
    31  language.
    32    (f) A covered entity shall comply with an individual's  request  under
    33  paragraphs  (b),  (c) and (d) of this subdivision, not later than ninety
    34  days after receiving a verifiable request from the  individual;  or,  if
    35  the  individual  is  a minor under the age of thirteen, the individual's
    36  parent or guardian; or, if the individual is a minor between the ages of
    37  thirteen and eighteen, either the individual or the individual's  parent
    38  or guardian.
    39    (i)  Where  the  covered entity has reasonable doubts or cannot verify
    40  the identity of the individual making a request  under  paragraphs  (b),
    41  (c)  or  (d)  of  this subdivision, the covered entity may request addi-
    42  tional personal  information  necessary  for  the  specific  purpose  of
    43  confirming  the  identity  of  such individual. In such cases, the addi-
    44  tional personal information shall not be processed for any purpose other
    45  than verifying the identity of the individual and shall be deleted imme-
    46  diately upon verification or failure to verify the individual.
    47    (ii) A covered entity may not  de-identify  an  individual's  personal
    48  information  during the ninety-day period beginning on the date on which
    49  the covered entity receives a request from the  individual  pursuant  to
    50  paragraphs (b), (c) and (d) of this subdivision.
    51    (iii)  The  division  may  promulgate rules and regulations specifying
    52  additional requirements for a  covered  entity's  response  to  requests
    53  pursuant to paragraphs (b), (c) and (d) of this subdivision.
    54    (g)  Where  an  individual  has taken steps by the online selection of
    55  options related to the processing of  personal  information,  a  covered
    56  entity shall adhere to such selections.

        A. 6042                            10
 
     1    (h)  A covered entity shall not share an individual's device identifi-
     2  ers with any third party without the individual's freely given,  specif-
     3  ic, informed, and unambiguous opt-in written consent.
     4    3.  Confidentiality.  (a) A covered entity shall not disclose personal
     5  information to a third party unless that third  party  is  contractually
     6  bound  to the covered entity to meet the same privacy and security obli-
     7  gations as the covered entity. A covered entity shall  exercise  reason-
     8  able  oversight  and  take reasonable actions, including by auditing the
     9  data security and processing practices of the third party no  less  than
    10  once annually, to ensure the third party's compliance. The covered enti-
    11  ty shall publish the results of such audit publicly on its website.
    12    (i)  A  covered  entity  shall not process personal information it has
    13  acquired from  a  third  party,  without  the  freely  given,  specific,
    14  informed,  and  unambiguous  opt-in  consent from the individual to whom
    15  that personal information pertains unless the processing is necessary to
    16  obtain such individuals' freely given, specific, informed, and  unambig-
    17  uous  opt-in consent, in which the covered entity shall only process the
    18  personal  information  necessary  to  request  freely  given,  specific,
    19  informed,  and  unambiguous  opt-in consent and shall immediately delete
    20  such personal information if consent is withheld or withdrawn.
    21    (ii) A covered entity that facilitates access to personal  information
    22  by  other  covered  entities  shall  limit  access  to and seek proof of
    23  destruction of such personal information if the first covered entity has
    24  actual knowledge that another covered entity has violated this section.
    25    (b) A covered entity shall not disclose personal information to a data
    26  processor unless the covered entity enters into a contractual  agreement
    27  with such data processor that prohibits the data processor from process-
    28  ing  such  personal  information for any purpose other than the purposes
    29  for which the  individual  provided  the  personal  information  to  the
    30  covered  entity,  and  that requires the data processor to meet the same
    31  privacy and security  obligations  as  the  covered  entity.  Such  data
    32  processor  shall not further disclose or process personal information it
    33  has acquired from the covered entity except as explicitly authorized  by
    34  the  contract.  A covered entity shall exercise reasonable oversight and
    35  take reasonable actions, including but not limited to, auditing the data
    36  security and processing practices of the data  processor  no  less  than
    37  once  annually,  to ensure its data processor's compliance.  The covered
    38  entity shall publish the results of such audit publicly on its website.
    39    4. Duty. A covered entity that collects personal information  directly
    40  from  an  individual  has a duty, when processing such personal informa-
    41  tion, to put the interests of the individual ahead of the  interests  of
    42  the covered entity's business.
    43    § 899-gg. Biometric information; retention, collection, disclosure and
    44  destruction.  1.   A covered entity or governmental entity in possession
    45  of biometric information shall develop a written policy, made  available
    46  to  the  public,  establishing  a  retention schedule and guidelines for
    47  permanently destroying biometric information when  the  initial  purpose
    48  for  collecting  or  obtaining  such  information has been satisfied, or
    49  within one year of the individual's last interaction  with  the  covered
    50  entity  or  governmental  entity, whichever occurs first. Absent a valid
    51  warrant issued by a court of competent jurisdiction, a covered entity or
    52  governmental entity in possession of biometric information shall  comply
    53  with its established retention schedule and destruction guidelines.
    54    2. No covered entity shall collect, capture, purchase, receive through
    55  trade, or otherwise obtain an individual's biometric information, unless
    56  it first:

        A. 6042                            11
 
     1    (a)  Informs the subject or the subject's legally authorized represen-
     2  tative in writing that  biometric  information  is  being  collected  or
     3  stored;
     4    (b)  Informs the subject or the subject's legally authorized represen-
     5  tative in writing of the specific purpose and length of term  for  which
     6  such biometric information is being collected, stored, and used; and
     7    (c)  Receives  a written release executed by the subject of the biome-
     8  tric information or the subject's legally authorized representative.
     9    3. Absent a law enforcement investigation pursuant to a criminal inci-
    10  dent, no governmental entity shall collect, capture,  purchase,  receive
    11  through  trade,  or  otherwise obtain an individual's biometric informa-
    12  tion, unless:
    13    (a) It first obtains a valid warrant issued by a  court  of  competent
    14  jurisdiction  under  the  procedures  described  in the federal rules of
    15  criminal procedure or article six hundred ninety of the criminal  proce-
    16  dure law.
    17    (b)  It believes that an emergency involving immediate danger of death
    18  or serious physical injury to any individual requires obtaining, without
    19  delay, biometric information related to such emergency and  the  request
    20  is narrowly tailored to address such emergency, subject to the following
    21  limitations:
    22    (i) The request shall document the factual basis for believing that an
    23  emergency involving immediate danger of death or serious physical injury
    24  to  an  individual requires obtaining, without delay, biometric informa-
    25  tion relating to such emergency; and
    26    (ii) Not later than forty-eight  hours  after  the  date  on  which  a
    27  governmental  entity obtains biometric information under this paragraph,
    28  the governmental entity shall file with the appropriate court a  signed,
    29  sworn  statement  of  a supervisory official of a rank designated by the
    30  head of such governmental entity setting forth the grounds for the emer-
    31  gency access; or
    32    (c) It first informs the subject or the subject's  legally  authorized
    33  representative  in writing that biometric information is being collected
    34  or stored, the specific purpose and length of term for which such biome-
    35  tric information is being collected, stored, and used, and it receives a
    36  written release executed by the subject of the biometric information  or
    37  the subject's legally authorized representative.
    38    4. No covered entity or governmental entity in possession of biometric
    39  information shall sell, lease, trade, monetize, or otherwise profit from
    40  such biometric information.
    41    5.  No covered entity or governmental entity in possession of an indi-
    42  vidual's biometric information shall disclose, redisclose, or  otherwise
    43  disseminate such individual's biometric information unless:
    44    (a)  The subject of the biometric information or the subject's legally
    45  authorized representative consents  in  writing  to  the  disclosure  or
    46  redisclosure of such information;
    47    (b)  The  disclosure  or  redisclosure of such information completes a
    48  financial transaction requested or authorized  by  the  subject  of  the
    49  biometric  identifier  or  the  biometric  information  or the subject's
    50  legally authorized representative;
    51    (c) The disclosure or redisclosure is required  by  state  or  federal
    52  law; or
    53    (d) The disclosure is required pursuant to a valid warrant issued by a
    54  court  of  competent  jurisdiction under the procedures described in the
    55  federal rules of criminal procedure or article six hundred ninety of the
    56  criminal procedure law.

        A. 6042                            12
 
     1    6. The requirements of this section are in addition to  those  imposed
     2  by  sections  eight hundred ninety-nine-dd through eight hundred ninety-
     3  nine-ff of this article.
     4    7. (a) Subdivisions one through six of this section shall not apply to
     5  biometric  information captured from a patient by a health care provider
     6  or health care facility, as defined in section eighteen  of  the  public
     7  health  law,  or  biometric  information  collected, used, or stored for
     8  medical  education  or  research,  public  health   or   epidemiological
     9  purposes, health care treatment, payment, or operations under the feder-
    10  al  health  insurance  portability and accountability act of 1996, or to
    11  X-ray, roentgen process, computed tomography, MRI, PET  scan,  mammogra-
    12  phy, or other image or film of the human anatomy used to diagnose, prog-
    13  nose, or treat an illness or other medical condition or to further vali-
    14  date scientific testing or screening.
    15    (b)  Biometric information captured, collected, used, or stored pursu-
    16  ant to paragraph (a) of this subdivision, including information that has
    17  been de-identified or aggregated,  shall  not  be  used,  disclosed,  or
    18  otherwise disseminated except for:
    19    (i)  Clinical,  treatment,  scientific,  public health, medical educa-
    20  tional, medical training, research, or insurance purposes;
    21    (ii) If required by state or federal law;
    22    (iii) To respond to a warrant issued by a court of competent jurisdic-
    23  tion under the procedures described in the  federal  rules  of  criminal
    24  procedure  or  article six hundred ninety of the criminal procedure law;
    25  or
    26    (iv) If the subject of the  biometric  information  or  the  subject's
    27  legally  authorized representative consents in writing to the disclosure
    28  or redisclosure.
    29    8. Nothing in subdivision seven  of  this  section  shall  affect  any
    30  person  or covered entity's rights or obligations under section eighteen
    31  of the public health law.
    32    § 899-hh. Surreptitious surveillance. A covered entity shall not acti-
    33  vate the microphone, camera, or other sensor on a device in  the  lawful
    34  possession  of  an individual that is capable of collecting or transmit-
    35  ting audio, video, or image data or data that can be  directly  used  to
    36  measure  biometric  information,  human  movement,  location, chemicals,
    37  light, radiation, air pressure, speed, weight  or  mass,  positional  or
    38  physical  orientation,  magnetic  fields,  temperature, or sound without
    39  providing the notice required by section eight hundred ninety-nine-dd of
    40  this article and obtaining  the  individual's  freely  given,  specific,
    41  informed,  and  unambiguous  opt-in  consent  pursuant  to section eight
    42  hundred ninety-nine-ee of this article.
    43    § 899-ii. Enforcement. 1. Any individual may bring a civil  action  in
    44  any  court  of competent jurisdiction alleging a violation of this arti-
    45  cle, or a violation of a rule or regulation  promulgated  to  effectuate
    46  the provisions of this article.
    47    (a)  A  violation  of  this article, or a violation of a rule or regu-
    48  lation promulgated to effectuate the provisions of  this  article,  with
    49  respect  to  the  personal  information  of  an individual constitutes a
    50  rebuttable presumption of harm to such individual.
    51    (b) In a civil action in which the plaintiff prevails, the  court  may
    52  award:
    53    (i)  Liquidated  damages  of  ten  thousand dollars or actual damages,
    54  whichever is greater;
    55    (ii) Punitive damages; and

        A. 6042                            13
 
     1    (iii) Any other relief, including an injunction, that the court  deems
     2  appropriate.
     3    (c)  In  addition  to  any  relief awarded under paragraph (b) of this
     4  subdivision, the court shall award reasonable attorney's fees and  costs
     5  to any prevailing plaintiff.
     6    2.  The attorney general may bring an action in the name of the state,
     7  or as a parens patriae proceeding on behalf of persons residing  in  the
     8  state, to enforce this article. In such action, the court may award:
     9    (a)  Injunctive  relief, including preliminary injunctions, to prevent
    10  further violations of and compel compliance with the provisions of  this
    11  article;
    12    (b)  Civil  penalties  of  up  to  twenty-five  thousand  dollars  per
    13  violation, or up to four percent of annual revenue of the covered  enti-
    14  ty, data processor, or third party;
    15    (c)  Other appropriate relief, including restitution, to redress harms
    16  to individuals or to mitigate all substantial risk of harm; and
    17    (d) Any other relief the court deems appropriate.
    18    3. A district attorney, or a city attorney in a city  having  a  popu-
    19  lation  in  excess  of seven hundred fifty thousand people, may bring an
    20  action to enforce this article. In such action, the court may award:
    21    (a) Injunctive relief, including preliminary injunctions,  to  prevent
    22  further  violations of and compel compliance with the provisions of this
    23  article;
    24    (b)  Civil  penalties  of  up  to  twenty-five  thousand  dollars  per
    25  violation,  or up to four percent of annual revenue of the covered enti-
    26  ty, data processor, or third party;
    27    (c) Other appropriate relief, including restitution, to redress  harms
    28  to individuals or to mitigate all substantial risk of harm; and
    29    (d) Any other relief the court deems appropriate.
    30    4.  When  calculating  damages  and  civil  penalties, the court shall
    31  consider the  number  of  affected  individuals,  the  severity  of  the
    32  violation, and the size and revenues of the covered entity.
    33    5. Each individual whose personal information is unlawfully processed,
    34  and  each  instance  of  processing counts as a separate violation. Each
    35  provision of  this  article  that  is  violated  counts  as  a  separate
    36  violation.
    37    6.  It  is  a  violation of this article for a covered entity, govern-
    38  mental entity, or anyone else acting on behalf of a  covered  entity  or
    39  governmental entity to retaliate against an individual who makes a good-
    40  faith  complaint  that  there  has  been  a  failure  to comply with any
    41  provision of this article. An individual who is injured by  a  violation
    42  of  this  subdivision  may bring a civil action for monetary damages and
    43  injunctive relief in any court of competent jurisdiction.
    44    7. If a series of steps or transactions  were  component  parts  of  a
    45  single  transaction  intended to be taken with the intention of avoiding
    46  the reach of this article, a  court  shall  disregard  the  intermediate
    47  steps  or transactions for purposes of effectuating the purposes of this
    48  article.
    49    8. Any provision of a contract or agreement of any kind,  including  a
    50  covered  entity's  terms  of  service or a privacy policy, including the
    51  short-form privacy notice required under section eight  hundred  ninety-
    52  nine-dd  of  this article, that purports to waive or limit in any way an
    53  individual's rights under this article, including but  not  limited  to,
    54  any  right to a remedy or means of enforcement, shall be deemed contrary
    55  to public policy and shall be void and unenforceable.

        A. 6042                            14
 
     1    9. No covered entity, that is a provider of  an  interactive  computer
     2  service  as defined in 47 U.S.C. § 230, shall be liable for any personal
     3  information or  biometric  information  posted  by  another  information
     4  content provider, as defined in 47 U.S.C. § 230.
     5    10.  No  private or government action brought pursuant to this section
     6  shall preclude any other action under this article.
     7    § 4. Section 292 of the executive law is amended by  adding  nine  new
     8  subdivisions 39, 40, 41, 42, 43, 44, 45, 46 and 47 to read as follows:
     9    39.  The  term "advertiser" shall mean a person who proposes a commer-
    10  cial transaction or disseminates a public or  private  communication  of
    11  which the primary purpose is to solicit for an opportunity.
    12    40.  The  term  "conduct  business in New York" shall mean to produce,
    13  solicit, or offer for use or sale any product or  service  in  a  manner
    14  that  intentionally  targets,  or may reasonably be expected to contact,
    15  New York residents, or to engage in any activity that would subject  the
    16  actor  to personal jurisdiction under section three hundred one or three
    17  hundred two of the civil practice law and  rules,  whether  or  not  for
    18  profit.
    19    41.  The term "covered entity" shall mean a legal entity that conducts
    20  business in New York state and as part of such business,  processes  and
    21  maintains the data of five hundred or more unique individuals.
    22    42.  The  term "governmental entity" shall mean a department or agency
    23  of the state or a political subdivision thereof, or an individual acting
    24  for or on behalf of the state or a political subdivision thereof.
    25    43. The term "individual" shall mean a natural person whom  a  covered
    26  entity knows or has reason to know is located within New York state.
    27    44.  The  term  "personal  information"  shall  mean  information that
    28  directly or indirectly identifies, relates to, describes, is capable  of
    29  being  associated  with,  or  could reasonably be linked to a particular
    30  individual, household, or device.  Information is reasonably linkable to
    31  an individual, household, or device if it can be used on its own  or  in
    32  combination  with  other reasonably available information, regardless of
    33  whether such other information is held by the covered entity, to identi-
    34  fy an individual, household, or device.
    35    45. The term "process" or "processing" shall mean any action or set of
    36  actions performed on or with personal  information,  including  but  not
    37  limited  to,  collection,  access,  use, retention, sharing, monetizing,
    38  analysis, creation, generation, derivation, decision-making,  recording,
    39  alternation,  organization,  structuring,  storage,  disclosure,  trans-
    40  mission, sale,  licensing,  disposal,  destruction,  de-identifying,  or
    41  other handling of personal information.
    42    46.  The  term  "proxy"  or  "proxies" shall mean information that, by
    43  itself or in combination with other information, is used  by  a  covered
    44  entity in a way that discriminates based on actual or perceived personal
    45  characteristics  or  classes protected under section two hundred ninety-
    46  six of this article.
    47    47. The term "targeted  advertisement"  shall  mean  an  advertisement
    48  directed  to  an individual where the advertisement is selected based on
    49  personal information obtained or inferred over time from  such  individ-
    50  ual's  or the individual's device's activities, communications, or asso-
    51  ciations across websites, applications, services, or  covered  entities.
    52  Such  term  shall  not  include advertisements directed to an individual
    53  solely based upon the individual's current visit to a website,  applica-
    54  tion,  service,  or  covered  entity, or in response to the individual's
    55  request for information or feedback.

        A. 6042                            15
 
     1    § 5. The executive law is amended by adding a  new  section  296-e  to
     2  read as follows:
     3    § 296-e. Unlawful discriminatory practices relating to targeted adver-
     4  tising. 1. It shall be an unlawful discriminatory practice:
     5    (a)  For  a  covered  entity  to  process personal information for the
     6  purpose of advertising, marketing, soliciting, offering, selling,  leas-
     7  ing,  licensing,  renting,  or  otherwise  commercially  contracting for
     8  employment, finance, health care, credit, insurance, housing, or  educa-
     9  tion  opportunities, in a manner that discriminates against or otherwise
    10  makes the opportunity unavailable on the basis  of  an  individual's  or
    11  class  of  individuals'  actual  or  perceived  age, race, creed, color,
    12  national origin, sexual orientation, gender identity or expression, sex,
    13  disability, predisposing genetic characteristics, or  domestic  violence
    14  victim status.
    15    (b)  For  a  covered entity or governmental entity to process personal
    16  information in  a  manner  that  discriminates  in  or  otherwise  makes
    17  unavailable,  on  the  basis of an individual's or class of individuals'
    18  actual or perceived age, race, creed,  color,  national  origin,  sexual
    19  orientation,  gender identity or expression, sex, disability, predispos-
    20  ing genetic characteristics, or domestic violence victim status, any  of
    21  the following:
    22    (i) The goods, services, facilities, privileges, advantages, or accom-
    23  modations  of  any  inn, hotel, motel, or other place of lodging, except
    24  for an establishment located within a building that  contains  not  more
    25  than  five  rooms  for rent or hire and that is actually occupied by the
    26  proprietor of such establishment as the residence of such proprietor;
    27    (ii) Any restaurant, bar, or other establishment serving food or drink
    28  to the public;
    29    (iii) Any motion picture house, theater, concert hall, stadium,  audi-
    30  torium, convention center, or lecture hall;
    31    (iv) Any sales or rental establishment;
    32    (v) Any laundromat, dry-cleaner, bank, barber shop, beauty shop, trav-
    33  el  service, shoe repair service, funeral parlor, gas station, office of
    34  an accountant or lawyer, pharmacy, insurance office, professional office
    35  of a health care provider, hospital, or other service establishment;
    36    (vi) Any terminal, depot, or other station used for  specified  public
    37  transportation;
    38    (vii) Any museum, library, or gallery;
    39    (viii) Any park, zoo, or amusement park;
    40    (ix)  A nursery, elementary, secondary, undergraduate, or postgraduate
    41  school, or other place of education;
    42    (x) Any day care center, senior citizen center, homeless shelter, food
    43  bank, adoption agency, or other social service center establishment; or
    44    (xi) Any gymnasium, health spa, bowling alley, golf course,  or  other
    45  place of exercise.
    46    (c)  For  a covered entity or governmental entity that offers, facili-
    47  tates, sells, places, displays, or provides individual level information
    48  to enable targeted advertisements for employment, finance, health  care,
    49  credit, insurance, housing, education opportunities, or places of public
    50  accommodation,  resort  or  amusement,  as described in paragraph (b) of
    51  this subdivision, to enable advertisers to  target  such  advertisements
    52  based  on  actual  or  perceived personal characteristics or classes, or
    53  proxies therefor, protected under section two hundred ninety-six of this
    54  article, including actual or perceived age, race, creed, color, national
    55  origin, sexual orientation, gender identity or expression, sex, disabil-

        A. 6042                            16

     1  ity, predisposing genetic characteristics, or domestic  violence  victim
     2  status.
     3    2.  A  covered  entity  or  governmental  entity  that sells or places
     4  targeted advertisements for employment, finance,  health  care,  credit,
     5  insurance, housing, education opportunities or places of public accommo-
     6  dation,  resort  or  amusement,  as  described  in paragraph (b) of this
     7  subdivision, shall require advertisers  to  certify  that  they  are  in
     8  compliance with section two hundred ninety-six of this article.
     9    3.  Nothing in this section shall limit a covered entity from process-
    10  ing personal information for  legitimate  testing  for  the  purpose  of
    11  preventing  unlawful  discrimination or otherwise determining the extent
    12  or effectiveness of  such  covered  entity's  or  governmental  entity's
    13  compliance with this section.
    14    §  6. The general business law is amended by adding a new section 350-
    15  a-1 to read as follows:
    16    § 350-a-1. Targeted advertising. 1. For the purposes of this  section,
    17  the following terms shall have the following meanings:
    18    (a)  "Advertiser" shall mean a person who proposes a commercial trans-
    19  action or disseminates a public or private communication  of  which  the
    20  primary purpose is to solicit for an opportunity.
    21    (b)  "Conduct business in New York" shall mean to produce, solicit, or
    22  offer for use or sale any product or service in  a  manner  that  inten-
    23  tionally  targets,  or  may  reasonably be expected to contact, New York
    24  residents, or to engage in any activity that would subject the actor  to
    25  personal  jurisdiction  under section three hundred one or section three
    26  hundred two of the civil practice law and  rules,  whether  or  not  for
    27  profit.
    28    (c)  "Covered entity" shall mean a legal entity that conducts business
    29  in New York state and as part of such business, processes and  maintains
    30  the data of five hundred or more unique individuals.
    31    (d)  "Individual"  shall  mean  a natural person whom a covered entity
    32  knows or has reason to know is located within New York state.
    33    (e) "Personal information" shall mean  information  that  directly  or
    34  indirectly  identifies, relates to, describes, is capable of being asso-
    35  ciated with, or could reasonably be linked to a  particular  individual,
    36  household,  or device. Information is reasonably linkable to an individ-
    37  ual, household, or device if it can be used on its own or in combination
    38  with other reasonably available information, regardless of whether  such
    39  other information is held by the covered entity, to identify an individ-
    40  ual, household, or device.
    41    (f)  "Process" or "processing" shall mean any action or set of actions
    42  performed on or with personal information, including but not limited to,
    43  collection,  access,  use,  retention,  sharing,  monetizing,  analysis,
    44  creation,  generation,  derivation,  decision-making,  recording, alter-
    45  nation, organization, structuring,  storage,  disclosure,  transmission,
    46  sale,  licensing, disposal, destruction, de-identifying, or other handl-
    47  ing of personal information.
    48    (g) "Proxy" or "proxies" shall mean information that, by itself or  in
    49  combination with other information, is used by a covered entity in a way
    50  that discriminates based on actual or perceived personal characteristics
    51  or  classes protected under section two hundred ninety-six of the execu-
    52  tive law.
    53    (h) "Targeted advertisement" shall mean an advertisement  directed  to
    54  an  individual  where  the  advertisement  is selected based on personal
    55  information obtained or inferred over time from such individual's or the
    56  individual's device's activities, communications, or associations across

        A. 6042                            17
 
     1  websites, applications, services, or covered entities. Such  term  shall
     2  not  include  advertisements directed to an individual solely based upon
     3  the individual's current visit to a website,  application,  service,  or
     4  covered  entity, or in response to the individual's request for informa-
     5  tion or feedback.
     6    2. It shall be unlawful:
     7    (a) For a covered entity  to  process  personal  information  for  the
     8  purpose  of advertising, marketing, soliciting, offering, selling, leas-
     9  ing, licensing,  renting,  or  otherwise  commercially  contracting  for
    10  employment,  finance, health care, credit, insurance, housing, or educa-
    11  tion opportunities, in a manner that discriminates against or  otherwise
    12  makes  the  opportunity  unavailable  on the basis of an individual's or
    13  class of individuals' actual  or  perceived  age,  race,  creed,  color,
    14  national origin, sexual orientation, gender identity or expression, sex,
    15  disability,  predisposing  genetic characteristics, or domestic violence
    16  victim status.
    17    (b) For a covered entity or governmental entity  to  process  personal
    18  information  in  a  manner  that  discriminates  in  or  otherwise makes
    19  unavailable, on the basis of an individual's or  class  of  individuals'
    20  actual  or  perceived  age,  race, creed, color, national origin, sexual
    21  orientation, gender identity or expression, sex, disability,  predispos-
    22  ing  genetic characteristics, or domestic violence victim status, any of
    23  the following:
    24    (i) The goods, services, facilities, privileges, advantages, or accom-
    25  modations of any inn, hotel, motel, or other place  of  lodging,  except
    26  for  an  establishment  located within a building that contains not more
    27  than five rooms for rent or hire and that is actually  occupied  by  the
    28  proprietor of such establishment as the residence of such proprietor;
    29    (ii) Any restaurant, bar, or other establishment serving food or drink
    30  to the public;
    31    (iii)  Any motion picture house, theater, concert hall, stadium, audi-
    32  torium, convention center, or lecture hall;
    33    (iv) Any sales or rental establishment;
    34    (v) Any laundromat, dry-cleaner, bank, barber shop, beauty shop, trav-
    35  el service, shoe repair service, funeral parlor, gas station, office  of
    36  an accountant or lawyer, pharmacy, insurance office, professional office
    37  of a health care provider, hospital, or other service establishment;
    38    (vi)  Any  terminal, depot, or other station used for specified public
    39  transportation;
    40    (vii) Any museum, library, or gallery;
    41    (viii) Any park, zoo, or amusement park;
    42    (ix) A nursery, elementary, secondary, undergraduate, or  postgraduate
    43  school, or other place of education;
    44    (x) Any day care center, senior citizen center, homeless shelter, food
    45  bank, adoption agency, or other social service center establishment; or
    46    (xi)  Any  gymnasium, health spa, bowling alley, golf course, or other
    47  place of exercise.
    48    (c) For a covered entity  that  offers,  facilitates,  sells,  places,
    49  displays,  or  provides  individual level information to enable targeted
    50  advertisements for employment, finance, health care, credit,  insurance,
    51  housing,  education  opportunities,  or  places of public accommodation,
    52  resort or amusement, as described in paragraph (b) of this  subdivision,
    53  to  enable  advertisers to target such advertisements based on actual or
    54  perceived personal characteristics  or  classes,  or  proxies  therefor,
    55  protected  under  section  two  hundred ninety-six of the executive law,
    56  including actual or perceived age, race, creed, color, national  origin,

        A. 6042                            18

     1  sexual  orientation,  gender  identity  or  expression, sex, disability,
     2  predisposing  genetic  characteristics,  or  domestic  violence   victim
     3  status.
     4    3.  A  covered entity that sells or places targeted advertisements for
     5  employment, finance, health care, credit, insurance, housing,  education
     6  opportunities or places of public accommodation, resort or amusement, as
     7  described  in  paragraph  (b)  of subdivision two of this section, shall
     8  require advertisers to certify that they are in compliance with  section
     9  two hundred ninety-six of the executive law.
    10    4.  Nothing in this section shall limit a covered entity from process-
    11  ing personal information for  legitimate  testing  for  the  purpose  of
    12  preventing  unlawful  discrimination or otherwise determining the extent
    13  or effectiveness of such covered entity's compliance with this section.
    14    § 7. Section 165 of the state finance law is amended by adding two new
    15  subdivisions 9 and 10 to read as follows:
    16    9. Automated decision system impact assessments.
    17    a. For the purpose of this subdivision, the following terms shall have
    18  the following meanings:
    19    (i) "Automated decision system" shall mean any  software,  system,  or
    20  process  that  is designed to aid or replace human decision making. Such
    21  term may include analyzing complex datasets to generate scores,  predic-
    22  tions, classifications, or some recommended action or actions, which are
    23  used by agencies to make decisions that impact human welfare.
    24    (ii)  "Automated decision system impact assessment" shall mean a study
    25  evaluating an automated  decision  system  and  the  automated  decision
    26  system's  development  processes, including the design and training data
    27  of the automated decision system, for  statistical  impacts  on  classes
    28  protected  under section two hundred ninety-six of the executive law, as
    29  well as for impacts on privacy, and security that includes at a minimum:
    30    (A) A detailed description  of  the  automated  decision  system,  its
    31  design, its training, its data, and its purpose;
    32    (B)  An assessment of the relative benefits and costs of the automated
    33  decision system in light of its purpose, taking  into  account  relevant
    34  factors,  including  data minimization practices, the duration for which
    35  personal information and the results of the  automated  decision  system
    36  are  stored,  what  information  about the automated decision system are
    37  available to the public, and the recipients of the results of the  auto-
    38  mated decision system;
    39    (C)  An assessment of the risk of harm posed by the automated decision
    40  system and the risk that such automated decision system may result in or
    41  contribute to inaccurate, unfair, biased,  or  discriminatory  decisions
    42  impacting individuals; and
    43    (D)  The  measures  the state agency will employ to minimize the risks
    44  described in item (C) of this subparagraph, including technological  and
    45  physical safeguards.
    46    (iii)  "Harm" shall mean potential or realized adverse consequences to
    47  an individual or to society, including but not limited to:
    48    (A) Direct or indirect financial harm.
    49    (B) Physical harm or threats to persons or property, including but not
    50  limited to bias-related  crimes  and  threats,  harassment,  and  sexual
    51  harassment.
    52    (C)  Discrimination  in  goods,  services,  or  economic  opportunity,
    53  including but not limited to  housing,  employment,  credit,  insurance,
    54  education,  or  health  care  on  the basis of an individual or class of
    55  individuals' actual or perceived age, race, national origin, sex, sexual

        A. 6042                            19
 
     1  orientation,  gender  identity,  marital  status,  disability,  military
     2  status, and/or membership in another protected class.
     3    (D)  Interference  with  or  surveillance of first amendment-protected
     4  activities by state actors.
     5    (E) Interference with  the  right  to  vote  or  with  free  and  fair
     6  elections.
     7    (F) Interference with due process or equal protection under law.
     8    (G) Loss of individual control over personal information, nonconsensu-
     9  al sharing of private information, and data breach.
    10    (H)  The nonconsensual capture of information or communications within
    11  an individual's home or where an individual has a reasonable expectation
    12  of seclusion or access control.
    13    (I) Other effects on an individual that may not be reasonably foresee-
    14  able to, contemplated by, or expected by  the  individual  to  whom  the
    15  personal information relates, that are nevertheless reasonably foreseea-
    16  ble,  contemplated  by,  or expected by the covered entity that alter or
    17  limit such individual's choices or predetermine results.
    18    (iv) "Individual" shall mean a natural person whom  a  covered  entity
    19  knows or has reason to know is located within New York state.
    20    (v)  "Personal  information"  shall  mean information that directly or
    21  indirectly identifies, relates to, describes, is capable of being  asso-
    22  ciated  with,  or could reasonably be linked to a particular individual,
    23  household, or device. Information is reasonably linkable to an  individ-
    24  ual, household, or device if it can be used on its own or in combination
    25  with  other reasonably available information, regardless of whether such
    26  other information is held by the state agency, to identify  an  individ-
    27  ual, household, or device.
    28    (vi) "Proxy" or "proxies" shall mean information that, by itself or in
    29  combination with other information, is used by a covered entity in a way
    30  that discriminates based on actual or perceived personal characteristics
    31  or  classes protected under section two hundred ninety-six of the execu-
    32  tive law.
    33    (vii) "Training data" shall mean the datasets used to train  an  auto-
    34  mated  decision  system,  machine  learning  algorithm, or classifier to
    35  create and derive patterns from a prediction model.
    36    b. The state and any governmental  agency,  political  subdivision  or
    37  public  benefit  corporation  of  the  state shall not purchase, obtain,
    38  procure, acquire, employ, use, deploy, or  access  information  from  an
    39  automated  decision system unless it first engages a neutral third party
    40  to conduct an automated decision system impact assessment and  publishes
    41  on its public website that automated decision system impact assessment:
    42    (i)  Of  existing  automated  decision  system  within one year of the
    43  effective date of this subdivision and every two years thereafter.
    44    (ii) Of new automated decision systems prior to acquisition and  every
    45  two years thereafter.
    46    c. Upon publication of an automated decision system impact assessment,
    47  the public shall have forty-five days to submit comments on such assess-
    48  ment  to the state and any governmental agency, political subdivision or
    49  public benefit corporation. The state and any governmental agency, poli-
    50  tical subdivision or public  benefit  corporation  shall  consider  such
    51  public  comments  when determining whether to purchase, obtain, procure,
    52  acquire, employ, use, deploy, or access information  from  an  automated
    53  decision  system and shall post responses to such public comments to its
    54  website within forty-five days after the close  of  the  public  comment
    55  period.

        A. 6042                            20
 
     1    d.  The  state  procurement  council  shall,  in consultation with the
     2  office of information technology services, the division of human  rights
     3  and  experts  and  representatives  from  the  communities  that will be
     4  directly affected by automated decision systems,  promulgate  rules  and
     5  regulations  to set the minimum standard entities shall meet to serve as
     6  neutral  third  parties  conducting  automated  decision  system  impact
     7  assessments.
     8    e.  The  state procurement council shall maintain a publicly available
     9  list of neutral third parties that meet the qualifications  outlined  in
    10  paragraph d of this subdivision.
    11    f.  Within  two  years  of the effective date of this subdivision, the
    12  office of information technology  services,  in  consultation  with  the
    13  division of human rights and experts and representatives from the commu-
    14  nities  that  will  be  directly affected by automated decision systems,
    15  shall complete and publish on its website a comprehensive study  of  the
    16  statistical  impacts  of automated decision systems on classes protected
    17  under section two hundred ninety-six of the executive law, including but
    18  not limited to, evaluating the use of proxies and the types of data used
    19  in training data sets and the risks associated with particular types  of
    20  training data.
    21    (i)  As  part  of  such  study,  the  office of information technology
    22  services shall review the automated decision system  impact  assessments
    23  that  have  been  published prior to completion of the study, as well as
    24  the public comments submitted in response  to  such  automated  decision
    25  impact assessments.
    26    (ii) The office may request data and information from: state agencies;
    27  consumer  protection,  civil  rights, and privacy advocates; researchers
    28  and academics; private entities that develop or deploy  automated  deci-
    29  sion  systems;  and  other  relevant sources to meet the purpose of such
    30  study. The office shall receive, upon request,  data  from  other  state
    31  agencies.
    32    10.  Automated  decision  system use policies; notice and human review
    33  requirements.
    34    a. For the purpose of this subdivision, the following terms shall have
    35  the following meanings:
    36    (i) "Automated decision system" shall mean any  software,  system,  or
    37  process  that  is designed to aid or replace human decision making. Such
    38  term may include analyzing complex datasets to generate scores,  predic-
    39  tions, classifications, or some recommended action or actions, which are
    40  used by agencies to make decisions that impact human welfare.
    41    (ii) "Automated decision system use policy" shall mean:
    42    (A)  A  description  of  the  capabilities  of  the automated decision
    43  system, any decisions that such system is used  to  make  or  assist  in
    44  making  and  any  specific  types  or  groups of persons protected under
    45  section two hundred ninety-six of the executive law who are likely to be
    46  affected by such decisions;
    47    (B) Rules, processes, and guidelines issued by the state agency  regu-
    48  lating  access  to  or use of such automated decision system, as well as
    49  any prohibitions or restrictions on use;
    50    (C) Safeguards or security measures designed  to  protect  information
    51  collected  by or inputted into such automated decision system, including
    52  but not limited to, the existence of encryption and access control mech-
    53  anisms;
    54    (D) Policies and practices relating to the retention, access, and  use
    55  of data collected by or inputted into such automated decision system, as
    56  well as the decisions rendered by such automated decision system;

        A. 6042                            21
 
     1    (E) Whether other entities outside the state agency have access to the
     2  information  and  data  used  by or inputted into the automated decision
     3  system or the decisions  rendered  by  the  automated  decision  system,
     4  including  whether  the  outside  entity  is  local,  state, federal, or
     5  private, the type of information and data that may be disclosed, and any
     6  safeguards  or  restrictions imposed by the agency on the outside entity
     7  regarding the use or dissemination of the information,  data,  or  deci-
     8  sion;
     9    (F)  Whether any training is required by the state agency for an indi-
    10  vidual to use such  automated  decision  system  or  access  information
    11  collected  by  or  inputted  into  such automated decision system or the
    12  decisions rendered by the automated decision system;
    13    (G) A description of the internal and  external  audit  and  oversight
    14  mechanisms,  including  the  mechanism  for  human review required under
    15  paragraph g of this subdivision, to ensure compliance with the automated
    16  decision use policy and that the  automated  decision  system  does  not
    17  result in harm to an individual;
    18    (H)  Relevant  technical  information  about  the  automated  decision
    19  system, including the system's name, vendor, and version, as well  as  a
    20  description  of  the  automated  decision system's general capabilities,
    21  including reasonably foreseeable capabilities outside the scope  of  the
    22  agency's proposed use;
    23    (I)  The  type  or  types  of  data inputs that the automated decision
    24  system uses, how that data is generated, collected, and  processed,  and
    25  the types of data the system is reasonably likely to generate;
    26    (J)  How  and  when  the automated decision system will be deployed or
    27  used and by whom, including but not limited to, the factors that will be
    28  used to determine where, when, and how the technology is deployed;
    29    (K) A description of any public or community engagement held  and  any
    30  future public or community engagement plans in connection with the auto-
    31  mated decision system; and
    32    (L)  A  description  of  the  fiscal  impact of the automated decision
    33  system, including initial acquisition costs,  ongoing  operating  costs,
    34  such  as maintenance, licensing, personnel, legal compliance, use audit-
    35  ing, data retention, and security costs, and any  current  or  potential
    36  sources  of funding, including any subsidies or free products offered by
    37  vendors or governmental entities.
    38    (iii) "De-identified information" shall mean information  that  cannot
    39  reasonably identify, relate to, describe, be capable of being associated
    40  with,  or be linked, directly or indirectly, to a particular individual;
    41  provided that a covered entity that uses de-identified information:
    42    (A) Has implemented technical safeguards that  prohibit  reidentifica-
    43  tion of the individual to whom such information may pertain;
    44    (B)  Has  implemented  business  processes  that specifically prohibit
    45  reidentification of such information;
    46    (C)  Has  implemented  business  processes  that  prevent  inadvertent
    47  release of such de-identified information; and
    48    (D) Makes no attempt to reidentify such information.
    49    (iv)  "Harm"  shall mean potential or realized adverse consequences to
    50  an individual or to society, including but not limited to:
    51    (A) Direct or indirect financial harm.
    52    (B) Physical harm or threats to persons or property, including but not
    53  limited to bias-related  crimes  and  threats,  harassment,  and  sexual
    54  harassment.
    55    (C)  Discrimination  in  goods,  services,  or  economic  opportunity,
    56  including but not limited to  housing,  employment,  credit,  insurance,

        A. 6042                            22
 
     1  education,  or  health  care  on  the basis of an individual or class of
     2  individuals' actual or perceived age, race, national origin, sex, sexual
     3  orientation,  gender  identity,  marital  status,  disability,  military
     4  status, and/or membership in another protected class.
     5    (D)  Interference  with  or  surveillance of first amendment-protected
     6  activities by state actors.
     7    (E) Interference with  the  right  to  vote  or  with  free  and  fair
     8  elections.
     9    (F) Interference with due process or equal protection under law.
    10    (G) Loss of individual control over personal information, nonconsensu-
    11  al sharing of private information, and data breach.
    12    (H)  The nonconsensual capture of information or communications within
    13  an individual's home or where an individual has a reasonable expectation
    14  of seclusion or access control.
    15    (I) Other effects on an individual that may not be reasonably foresee-
    16  able to, contemplated by, or expected by  the  individual  to  whom  the
    17  personal information relates, that are nevertheless reasonably foreseea-
    18  ble,  contemplated  by,  or expected by the covered entity that alter or
    19  limit such individual's choices or predetermine results.
    20    (v) "Individual" shall mean a natural person  whom  a  covered  entity
    21  knows or has reason to know is located within New York state.
    22    (vi)  "Personal  information"  shall mean information that directly or
    23  indirectly identifies, relates to, describes, is capable of being  asso-
    24  ciated  with,  or could reasonably be linked to a particular individual,
    25  household, or device. Information is reasonably linkable to an  individ-
    26  ual, household, or device if it can be used on its own or in combination
    27  with  other reasonably available information, regardless of whether such
    28  other information is held by the state agency, to identify  an  individ-
    29  ual, household, or device.
    30    (vii)  "Relevant  technical  information"  shall  include,  but not be
    31  limited to, source code, models, documentation on the  algorithms  used,
    32  design  documentation  and  information  about  technical  architecture,
    33  training data, data provenance information, justification for the valid-
    34  ity of the model, any  records  of  bias,  and  any  validation  testing
    35  performed on the system.
    36    b.  The  state  and  any governmental agency, political subdivision or
    37  public  benefit  corporation  of  the  state  that  purchases,  obtains,
    38  procures, acquires, employs, uses, deploys, or accesses information from
    39  an automated decision system shall publish on its website at least nine-
    40  ty  days  prior to the purchase, obtaining, use, acquisition, or deploy-
    41  ment of new automated decision systems and, for existing automated deci-
    42  sion systems, within one hundred eighty days of the  effective  date  of
    43  this subdivision, an automated decision system use policy.
    44    (i)  When the state and any governmental agency, political subdivision
    45  or public benefit corporation of the state seeks to change or changes an
    46  automated decision system in a way that affects the results or  outcomes
    47  of  the automated decision system or uses such automated decision system
    48  for a purpose or manner not previously disclosed  through  an  automated
    49  decision system use policy, it shall provide an addendum to the existing
    50  automated  decision  system  use  policy describing such change or addi-
    51  tional use and retain an archived copy of the previous  automated  deci-
    52  sion  system  so that decisions made under the old system use policy may
    53  be challenged under paragraph g of this subdivision.
    54    (ii) Upon publication of, or addendum to, any proposed automated deci-
    55  sion system policy, the public shall  have  forty-five  days  to  submit

        A. 6042                            23
 
     1  comments  on  such  policy  to  the state and any governmental agency or
     2  political subdivision or public benefit corporation.
     3    (iii)  The state and any governmental agency, political subdivision or
     4  public benefit corporation shall consider public  comments  and  provide
     5  the final automated decision system use policy to the office of informa-
     6  tion  technology  services,  the  committee  on open government, and the
     7  state procurement council, and shall post such decision to  its  website
     8  no  later  than  forty-five  days  after the close of the public comment
     9  period.
    10    c. The state and any governmental  agency,  political  subdivision  or
    11  public benefit corporation shall obtain approval from the city or county
    12  council  with appropriate jurisdiction or the state legislature, follow-
    13  ing the public comment period required in paragraph b of  this  subdivi-
    14  sion,  and  a  properly-noticed,  germane,  public  hearing at which the
    15  public is afforded a fair and adequate opportunity  to  provide  online,
    16  written, and oral testimony, prior to:
    17    (i)  Seeking  funds  for  an automated decision system that assigns or
    18  contributes to the determination of rights, benefits, opportunities,  or
    19  services for an individual, including but not limited to, applying for a
    20  grant,  or  soliciting or accepting state or federal funds or in-kind or
    21  other donations;
    22    (ii) Acquiring or borrowing an automated decision system that  assigns
    23  or  contributes to the determination of rights, benefits, opportunities,
    24  or services for an individual, whether or not such acquisition  is  made
    25  through the exchange of monies or other consideration;
    26    (iii)  Using  a new or existing automated decision system that assigns
    27  or contributes to the determination of rights, benefits,  opportunities,
    28  or  services for an individual, or data derived therefrom, for a purpose
    29  or in a manner not previously approved by the  city  or  county  council
    30  with appropriate jurisdiction or the state legislature; or
    31    (iv)  Soliciting  proposals for or entering into an agreement with any
    32  other person or entity to acquire, share, or otherwise use an  automated
    33  decision  system  that  assigns  or  contributes to the determination of
    34  rights, benefits, opportunities, or services for an individual or  auto-
    35  mated decision system data.
    36    d.  The  committee  on  open government shall conduct annual audits of
    37  automated decision system use policies that shall:
    38    (i)  Assess  whether  each  state  agency  that  purchases,   obtains,
    39  procures, acquires, employs, uses, deploys, or accesses information from
    40  an  automated  decision  system complies with the terms of the automated
    41  decision system use policy;
    42    (ii) Describes any known or reasonably  suspected  violations  of  any
    43  automated decision system use policies; and
    44    (iii)  Publish  recommendations,  if  any, relating to revision of the
    45  relevant automated decision system use policies.
    46    e. The state and any governmental  agency,  political  subdivision  or
    47  public  benefit  corporation  of  the  state shall not purchase, obtain,
    48  procure, acquire, employ, use, deploy, or  access  information  from  an
    49  automated  decision  system  that assigns or contributes to the determi-
    50  nation of rights, benefits, opportunities, or services for an individual
    51  unless it first implements a process to provide a plain-language notifi-
    52  cation to any individual whose personal information is processed by  the
    53  automated decision system and whom the automated decision system's deci-
    54  sion  affects of the fact that such system is in use, the system's name,
    55  vendor, and version, what decision or decisions will be used to make  or
    56  support; and what policies and guidelines apply to its deployment.

        A. 6042                            24
 
     1    f.  The  state  and  any governmental agency, political subdivision or
     2  public benefit corporation of the  state  shall  not  purchase,  obtain,
     3  procure,  acquire,  employ,  use,  deploy, or access information from an
     4  automated decision system that assigns or contributes  to  the  determi-
     5  nation of rights, benefits, opportunities, or services for an individual
     6  unless it first implements a process to provide a plain-language notifi-
     7  cation to any individual whose personal information is processed by such
     8  automated  decision  system  and  whom  such automated decision system's
     9  decision affects, of the involvement of an automated decision system  in
    10  making the decision, the degree of human intervention in the system, how
    11  the  automated  decision system made the decision, the justification for
    12  the decision, the variables considered in rendering the decision, wheth-
    13  er and how the decision deviated from the automated decision's  system's
    14  recommendation,  how the individual may contest the decision pursuant to
    15  paragraph g of this subdivision, and the process  for  requesting  human
    16  review of the decision pursuant to paragraph g of this subdivision.
    17    (i)  The  state  and any governmental agency, political subdivision or
    18  public benefit corporation of the state shall ensure that it can explain
    19  the basis for its decision to any impacted individual  in  terms  under-
    20  standable to a layperson including, without limitation, by requiring the
    21  vendor to create such explanation.
    22    (ii)  The committee on open government, in consultation with the divi-
    23  sion of human rights, the office of information technology services, and
    24  experts and representatives from the communities that will  be  directly
    25  affected  by  automated decision systems, may promulgate rules and regu-
    26  lations specifying the requirements for such notice.
    27    g. The state and any governmental  agency,  political  subdivision  or
    28  public  benefit  corporation  of  the  state shall not purchase, obtain,
    29  procure, acquire, employ, use, deploy, or  access  information  from  an
    30  automated  decision  system  that assigns or contributes to the determi-
    31  nation of rights, benefits, opportunities, or services for an individual
    32  unless it first develops a process for human review.
    33    (i) The office of information  technology  services,  in  consultation
    34  with  the division of human rights, the committee on open government and
    35  experts and representatives from the communities that will  be  directly
    36  affected  by  automated decision systems, may promulgate rules and regu-
    37  lations specifying  the  requirements  for  human  review  of  decisions
    38  rendered by automated decision systems.
    39    (ii) An individual who was denied or assigned a right, benefit, oppor-
    40  tunity  or service, may request human review of the decision rendered by
    41  the automated decision system.
    42    (iii) Where the human review overturns a decision rendered by an auto-
    43  mated decision system, the affected individual  experiences  harm  as  a
    44  result  of  the  overturned  decision, and the state or any governmental
    45  agency, political subdivision or public benefit corporation of the state
    46  cannot or will not provide a remedy, or where the human review does  not
    47  overturn  a  decision  rendered  by  an  automated  decision system, the
    48  affected individual, or their heirs, assigns, estate, or  successors  in
    49  interest,  may  bring  in  any court of competent jurisdiction an action
    50  alleging a violation of this subdivision.
    51    (iv) The court shall award to the prevailing plaintiff in such action,
    52  the following relief:
    53    (A) Any injunctive or other equitable relief the court deems appropri-
    54  ate;

        A. 6042                            25
 
     1    (B) Any actual damages resulting from any violation of  this  subdivi-
     2  sion, or ten thousand dollars in damages for each such violation, which-
     3  ever is greater;
     4    (C) Reasonable attorney's fees and costs; and
     5    (D) Any other relief the court deems appropriate.
     6    h.  The  state  and  any governmental agency, political subdivision or
     7  public  benefit  corporation  of  the  state  that  purchases,  obtains,
     8  procures, acquires, employs, uses, deploys, or accesses information from
     9  an automated decision system that assigns or contributes to the determi-
    10  nation of rights, benefits, opportunities, or services for an individual
    11  shall  annually publish publicly on its website metrics on the number of
    12  requests for human review of a decision rendered by the automated  deci-
    13  sion  system  it  received  and  the  outcome  of such human review. The
    14  metrics may include de-identified information in the aggregate but shall
    15  not include any personal information.
    16    § 8. Section 8 of the state finance law is amended  by  adding  a  new
    17  subdivision 21 to read as follows:
    18    21.  Notwithstanding  any  inconsistent  provision  of law, no payment
    19  shall be made for an automated decision system, as  defined  in  section
    20  one  hundred  sixty-five of this chapter, that assigns or contributes to
    21  the determination of rights, benefits, opportunities, or services for an
    22  individual unless the automated decision system uses  only  open  source
    23  software  and the acquiring agency has complied with the automated deci-
    24  sion system impact assessment and automated decision system  use  policy
    25  requirements  in section one hundred sixty-five of this chapter. For the
    26  purposes of this subdivision, "open source software" shall mean software
    27  for which the human-readable source code is available  for  use,  study,
    28  modification, and enhancement by the users of that software.
    29    §  9. Section 8 of the state finance law is amended by adding four new
    30  subdivisions 22, 23, 24 and 25 to read as follows:
    31    22. Notwithstanding any inconsistent  provision  of  law,  no  payment
    32  shall  be  made  for an automated decision system, as defined in section
    33  one hundred sixty-five of this chapter, that assigns or  contributes  to
    34  the determination of rights, benefits, opportunities, or services for an
    35  individual,  prior  to the approval from the city or county council with
    36  appropriate jurisdiction or the state legislature as required in section
    37  one hundred sixty-five of this chapter.
    38    23. Notwithstanding any inconsistent  provision  of  law,  no  payment
    39  shall  be  made  for an automated decision system, as defined in section
    40  one hundred  sixty-five  of  this  chapter,  if  the  vendor's  contract
    41  contains  nondisclosure  or other provisions that prohibit or impair the
    42  state and any governmental agency or  political  subdivision  or  public
    43  benefit  corporation  of the state's obligations under subdivisions nine
    44  and ten of section one hundred sixty-five of this chapter.
    45    24. Notwithstanding any inconsistent  provision  of  law,  no  payment
    46  shall  be  made  for an automated decision system, as defined in section
    47  one hundred sixty-five of this chapter, if the automated decision system
    48  discriminates against an individual, or treats an individual less favor-
    49  ably than another, in whole or in part, on the  basis  of  one  or  more
    50  factors  enumerated  in  section two hundred ninety-six of the executive
    51  law.
    52    25. Notwithstanding any inconsistent  provision  of  law,  no  payment
    53  shall  be  made  for an automated decision system that makes final deci-
    54  sions, judgments, or conclusions without human intervention that  impact
    55  the  constitutional  or legal rights, duties, or privileges of any indi-

        A. 6042                            26
 
     1  vidual in New York state or  for  any  automated  decision  system  that
     2  deploys or triggers any weapon.
     3    § 10. Section 814 of the education law, as added by chapter 526 of the
     4  laws  of  2006  and subdivision 3 as added by chapter 545 of the laws of
     5  2008, is amended to read as follows:
     6    § 814. Courses of study in internet safety. 1. [Any school district in
     7  the state may provide, to pupils] The  regents  shall  ensure  that  the
     8  course  of  instruction in grades kindergarten through twelve[, instruc-
     9  tion designed to promote the] includes a component on digital  literacy,
    10  digital privacy, and the proper and safe use of the internet.
    11    2.    The  boards  of  education and trustees of the cities and school
    12  districts of the state shall require instruction to  be  given  in  such
    13  topics, by the teachers employed in the schools therein, commencing with
    14  the two thousand twenty-three--two thousand twenty-four school year. All
    15  pupils  who attend public or charter schools shall receive such instruc-
    16  tion.
    17    3. The commissioner, in consultation with the  chief  privacy  officer
    18  and  the office of information technology services, shall [provide tech-
    19  nical assistance to assist in the development of curricula] develop  and
    20  establish  a program for such courses of study which shall be age appro-
    21  priate and developed according to the needs and abilities of  pupils  at
    22  successive  grade levels in order to provide awareness, skills, informa-
    23  tion and support to aid in the safe usage of the internet. Such  program
    24  shall include:
    25    (a)  Learning standards for digital literacy, digital privacy, and the
    26  proper and safe use of  the  internet  in  grades  kindergarten  through
    27  twelve  that,  at a minimum, instruct students on how to identify online
    28  fraud, as well as reliable sources and  information,  help  students  to
    29  understand  how  online  activities  are  tracked  and  recorded,  where
    30  personal information posted online may go, with whom it may  be  shared,
    31  and  how it may be used, and offer best practices for protecting digital
    32  security and digital privacy;
    33    (b) Model curricula for digital literacy,  digital  privacy,  and  the
    34  proper  and  safe  use  of  the  internet in grades kindergarten through
    35  twelve that are suitable to student age, based on cognitive,  emotional,
    36  and behavioral capacity;
    37    (c)  Guidelines and professional training and development resources to
    38  support implementation of such instruction in schools;
    39    (d) Public availability of all program materials  related  to  digital
    40  literacy,  digital  privacy, and the proper and safe use of the internet
    41  on the department's website; and
    42    (e) A system to track and  evaluate  such  digital  literacy,  digital
    43  privacy,  and the proper and safe use of the internet education, includ-
    44  ing, but not limited to, a reporting requirement that tracks  and  makes
    45  district compliance publicly available.
    46    4. Such program shall be reviewed periodically by the commissioner, in
    47  consultation  with  the chief privacy officer and the office of informa-
    48  tion technology, at intervals specified by the commissioner, and updated
    49  as necessary.
    50    5. The commissioner shall prescribe rules and regulations relating  to
    51  such contents, topics, and courses to be included in a digital literacy,
    52  digital privacy, and the proper and safe use of the internet curriculum;
    53  provided, however, that the curricula need not be uniform throughout the
    54  state;  and  provided  further,  however,  that  school  districts shall
    55  utilize either a curriculum for digital literacy, digital  privacy,  and
    56  the  proper  and safe use of the internet prescribed by the commissioner

        A. 6042                            27

     1  or a curriculum in accordance with the  standards  and  criteria  estab-
     2  lished by the commissioner.
     3    6. The commissioner shall make recommendations to the board of regents
     4  about a program on digital literacy, digital privacy, and the proper and
     5  safe  use of the internet, relevant learning standards, model curricula,
     6  and  curriculum  resources,  guidelines,  and  professional  development
     7  resources  within  one year of the effective date of this section.  Upon
     8  approval and adoption by the board  of  regents,  the  department  shall
     9  issue  guidance  to  school  districts  and publish on its website model
    10  curricula and instructional resources required by this section.
    11    7. Prior to making such recommendations to the  regents,  the  commis-
    12  sioner  shall  seek  the recommendations of teachers, school administra-
    13  tors, teacher educators, digital privacy and security experts,  journal-
    14  ism  experts,  the  chief  information  security office, and others with
    15  educational expertise in the proposed curriculum.
    16    [3.] 8. The commissioner shall develop age-appropriate  resources  and
    17  technical  assistance for schools to provide to students in grades three
    18  through twelve and their parents or legal guardians concerning the  safe
    19  and  responsible  use  of the internet. The resources shall include, but
    20  not be limited to, information regarding how child predators may use the
    21  internet to lure and exploit children, protecting personal  information,
    22  internet scams and cyber-bullying.
    23    §  11.  Severability. If any provision of this act, or any application
    24  of any provision of this act, is held to  be  invalid,  that  shall  not
    25  affect the validity or effectiveness of any other provision of this act,
    26  or  of  any other application of any provision of this act, which can be
    27  given effect without that provision or application; and to that end, the
    28  provisions and applications of this act are severable.
    29    § 12. This act shall take effect immediately; provided, however,  that
    30  sections  one,  two,  three,  four,  five and six of this act shall take
    31  effect one year after it shall have become a law and  section  eight  of
    32  this  act  shall take effect two years after it shall have become a law.
    33  Effective immediately, the addition, amendment and/or repeal of any rule
    34  or regulation necessary for the implementation of this act on its effec-
    35  tive date are authorized to be made and  completed  on  or  before  such
    36  effective date.
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