Bill Text: NY S04457 | 2023-2024 | General Assembly | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Establishes the biometric privacy act; requires private entities in possession of biometric identifiers or biometric information to develop a written policy establishing a retention schedule and guidelines for permanently destroying biometric identifiers and biometric information when the initial purpose for collecting or obtaining such identifiers or information has been satisfied or within three years of the individual's last interaction with the private entity, whichever occurs first.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Engrossed - Dead) 2024-06-06 - referred to consumer affairs and protection [S04457 Detail]

Download: New_York-2023-S04457-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                          4457

                               2023-2024 Regular Sessions

                    IN SENATE

                                    February 9, 2023
                                       ___________

        Introduced  by  Sen.  LIU  --  read  twice and ordered printed, and when
          printed to be committed to the Committee on Consumer Protection

        AN ACT to amend the general  business  law,  in  relation  to  biometric
          privacy

          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:

     1    Section 1. The general business law is amended by adding a new article
     2  32-A to read as follows:
     3                                ARTICLE 32-A
     4                            BIOMETRIC PRIVACY ACT
     5  Section 676. Short title.
     6          676-a. Definitions.
     7          676-b. Retention; collection; disclosure; destruction.
     8          676-c. Right of action.
     9          676-d. Construction with other laws.
    10    § 676. Short title. This article shall be known and may  be  cited  as
    11  the "biometric privacy act".
    12    § 676-a. Definitions. As used in this article: 1. "Biometric identifi-
    13  er"  means  a  retina  or iris scan, fingerprint, voiceprint, or scan of
    14  hand or face geometry. Biometric identifiers shall not  include  writing
    15  samples,  written signatures, photographs, human biological samples used
    16  for valid scientific testing  or  screening,  demographic  data,  tattoo
    17  descriptions,  or  physical  descriptions  such  as height, weight, hair
    18  color, or eye color. Biometric identifiers  shall  not  include  donated
    19  body  parts  as  defined  in  section  forty-three hundred of the public
    20  health law or blood or serum stored on behalf of recipients or potential
    21  recipients of living or cadaveric transplants and obtained or stored  by
    22  a  federally  designated organ procurement agency. Biometric identifiers
    23  do not include information captured from a  patient  in  a  health  care
    24  setting or information collected, used, or stored for health care treat-
    25  ment,  payment,  or operations under the federal Health Insurance Porta-

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD01142-01-3
        S. 4457                             2

     1  bility and Accountability Act of  1996.  Biometric  identifiers  do  not
     2  include  an X-ray, roentgen process, computed tomography, magnetic reso-
     3  nance imaging, positron-emission tomography scan, mammography, or  other
     4  image  or film of the human anatomy used to diagnose, prognose, or treat
     5  an illness or other medical condition or to further validate  scientific
     6  testing or screening.
     7    2. "Biometric information" means any information, regardless of how it
     8  is  captured,  converted,  stored,  or  shared, based on an individual's
     9  biometric identifier used to identify an individual. Biometric  informa-
    10  tion  shall  not  include  information  derived from items or procedures
    11  excluded under the definition of biometric identifiers.
    12    3. "Confidential and sensitive information" means personal information
    13  that can be used to uniquely identify an individual or  an  individual's
    14  account  or property which shall include, but shall not be limited to, a
    15  genetic marker, genetic testing information, a unique identifier  number
    16  to  locate  an  account or property, an account number, a personal iden-
    17  tification number, a pass code, a driver's license number, or  a  social
    18  security number.
    19    4.  "Private  entity"  means any individual, partnership, corporation,
    20  limited liability company, association, or other group,  however  organ-
    21  ized.  A  private  entity  shall not include a state or local government
    22  agency or any court in the state, a clerk of the court, or  a  judge  or
    23  justice thereof.
    24    5. "Written release" means informed written consent or, in the context
    25  of  employment,  a  release  executed  by  an employee as a condition of
    26  employment.
    27    § 676-b. Retention; collection; disclosure; destruction. 1. A  private
    28  entity  in  possession of biometric identifiers or biometric information
    29  must develop a written policy, made available to the public,  establish-
    30  ing a retention schedule and guidelines for permanently destroying biom-
    31  etric identifiers and biometric information when the initial purpose for
    32  collecting  or obtaining such identifiers or information has been satis-
    33  fied or within three years of the individual's last interaction with the
    34  private entity, whichever  occurs  first.  Absent  a  valid  warrant  or
    35  subpoena  issued  by a court of competent jurisdiction, a private entity
    36  in possession of biometric identifiers  or  biometric  information  must
    37  comply  with  its  established retention schedule and destruction guide-
    38  lines.
    39    2. No private entity may collect, capture, purchase,  receive  through
    40  trade,  or otherwise obtain a person's or a customer's biometric identi-
    41  fier or biometric information, unless it first:
    42    (a) informs the subject or the subject's legally authorized  represen-
    43  tative  in  writing that a biometric identifier or biometric information
    44  is being collected or stored;
    45    (b) informs the subject or the subject's legally authorized  represen-
    46  tative in writing of the specific purpose and length of term for which a
    47  biometric  identifier  or  biometric  information  is  being  collected,
    48  stored, and used; and
    49    (c) receives a written release executed by the subject of  the  biome-
    50  tric  identifier  or  biometric  information  or  the  subject's legally
    51  authorized representative.
    52    3. No private entity in possession of a biometric identifier or biome-
    53  tric information may sell, lease, trade,  or  otherwise  profit  from  a
    54  person's or a customer's biometric identifier or biometric information.
    55    4. No private entity in possession of a biometric identifier or biome-
    56  tric  information  may  disclose, redisclose, or otherwise disseminate a
        S. 4457                             3

     1  person's or a customer's biometric identifier or  biometric  information
     2  unless:
     3    (a)  the  subject of the biometric identifier or biometric information
     4  or the subject's  legally  authorized  representative  consents  to  the
     5  disclosure or redisclosure;
     6    (b)  the  disclosure or redisclsoure completes a financial transaction
     7  requested or authorized by the subject of the  biometric  identifier  or
     8  the  biometric information or the subject's legally authorized represen-
     9  tative;
    10    (c) the disclosure or redisclosure is required by  federal,  state  or
    11  local law or municipal ordinance; or
    12    (d) the disclosure is required pursuant to a valid warrant or subpoena
    13  issued by a court of competent jurisdiction.
    14    5.  A private entity in possession of a biometric identifier or biome-
    15  tric information shall:
    16    (a) store, transmit, and protect from disclosure all biometric identi-
    17  fiers and biometric information using the reasonable  standard  of  care
    18  within the private entity's industry; and
    19    (b) store, transmit, and protect from disclosure all biometric identi-
    20  fiers  and biometric information in a manner that is the same as or more
    21  protective than the manner in which the private  entity  stores,  trans-
    22  mits, and protects other confidential and sensitive information.
    23    §  676-c. Right of action. Any person aggrieved by a violation of this
    24  article shall have a right of action in supreme court against an offend-
    25  ing party. A prevailing party may recover for each violation:
    26    1. against a private entity that negligently violates a  provision  of
    27  this  article,  liquidated  damages  of  one  thousand dollars or actual
    28  damages, whichever is greater;
    29    2. against a private entity that intentionally or recklessly  violates
    30  a provision of this article, liquidated damages of five thousand dollars
    31  or actual damages, whichever is greater;
    32    3. reasonable attorneys' fees and costs, including expert witness fees
    33  and other litigation expenses; and
    34    4. other relief, including an injunction, as the court may deem appro-
    35  priate.
    36    §  676-d.  Construction  with  other  laws. 1. Nothing in this article
    37  shall be construed to impact the admission  or  discovery  of  biometric
    38  identifiers  and  biometric information in any action of any kind in any
    39  court, or before any tribunal, board, agency, or person.
    40    2. Nothing in this article shall be construed  to  conflict  with  the
    41  federal Health Insurance Portability and Accountability Act of 1996.
    42    3.  Nothing in the article shall be deemed to apply in any manner to a
    43  financial institution or an affiliate of a financial institution that is
    44  subject to Title V of the federal Gramm-Leach-Bliley Act of 1999.
    45    4. Nothing in this article shall be construed to apply to  a  contrac-
    46  tor,  subcontractor, or agent of a state agency of local government when
    47  working for that state agency of local government.
    48    § 2. This act shall take effect on the ninetieth day  after  it  shall
    49  have become a law.