S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   9793
 
                           I N  A S S E M B L Y
 
                             February 9, 2018
                                ___________
 
 Introduced  by M. of A. GUNTHER -- read once and referred to the Commit-
   tee on Consumer Affairs and Protection
 
 AN ACT to amend the general  business  law,  in  relation  to  biometric
   privacy
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. The general business law is amended by adding a new article
 32-A to read as follows:
                               ARTICLE 32-A
                           BIOMETRIC PRIVACY ACT
 SECTION 676. SHORT TITLE.
         676-A. DEFINITIONS.
         676-B. RETENTION; COLLECTION; DISCLOSURE; DESTRUCTION.
         676-C. RIGHT OF ACTION.
         676-D. CONSTRUCTION WITH OTHER LAWS.
   § 676. SHORT TITLE. THIS ARTICLE SHALL BE KNOWN AND MAY  BE  CITED  AS
 THE "BIOMETRIC PRIVACY ACT".
   § 676-A. DEFINITIONS. AS USED IN THIS ARTICLE: 1. "BIOMETRIC IDENTIFI-
 ER"  MEANS  A  RETINA  OR IRIS SCAN, FINGERPRINT, VOICEPRINT, OR SCAN OF
 HAND OR FACE GEOMETRY. BIOMETRIC IDENTIFIERS SHALL NOT  INCLUDE  WRITING
 SAMPLES,  WRITTEN SIGNATURES, PHOTOGRAPHS, HUMAN BIOLOGICAL SAMPLES USED
 FOR VALID SCIENTIFIC TESTING  OR  SCREENING,  DEMOGRAPHIC  DATA,  TATTOO
 DESCRIPTIONS,  OR  PHYSICAL  DESCRIPTIONS  SUCH  AS HEIGHT, WEIGHT, HAIR
 COLOR, OR EYE COLOR. BIOMETRIC IDENTIFIERS  SHALL  NOT  INCLUDE  DONATED
 BODY  PARTS  AS  DEFINED  IN  SECTION  FORTY-THREE HUNDRED OF THE PUBLIC
 HEALTH LAW OR BLOOD OR SERUM STORED ON BEHALF OF RECIPIENTS OR POTENTIAL
 RECIPIENTS OF LIVING OR CADAVERIC TRANSPLANTS AND OBTAINED OR STORED  BY
 A  FEDERALLY  DESIGNATED ORGAN PROCUREMENT AGENCY. BIOMETRIC IDENTIFIERS
 DO NOT INCLUDE INFORMATION CAPTURED FROM A  PATIENT  IN  A  HEALTH  CARE
 SETTING OR INFORMATION COLLECTED, USED, OR STORED FOR HEALTH CARE TREAT-
 MENT,  PAYMENT,  OR OPERATIONS UNDER THE FEDERAL HEALTH INSURANCE PORTA-
 BILITY AND ACCOUNTABILITY ACT OF  1996.  BIOMETRIC  IDENTIFIERS  DO  NOT
 INCLUDE  AN X-RAY, ROENTGEN PROCESS, COMPUTED TOMOGRAPHY, MAGNETIC RESO-
 NANCE IMAGING, POSITRON-EMISSION TOMOGRAPHY SCAN, MAMMOGRAPHY, OR  OTHER
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
              

                       [ ] is old law to be omitted.
                                                            LBD14465-02-8

 A. 9793                             2
 
 IMAGE  OR FILM OF THE HUMAN ANATOMY USED TO DIAGNOSE, PROGNOSE, OR TREAT
 AN ILLNESS OR OTHER MEDICAL CONDITION OR TO FURTHER VALIDATE  SCIENTIFIC
 TESTING OR SCREENING.
   2. "BIOMETRIC INFORMATION" MEANS ANY INFORMATION, REGARDLESS OF HOW IT
 IS  CAPTURED,  CONVERTED,  STORED,  OR  SHARED, BASED ON AN INDIVIDUAL'S
 BIOMETRIC IDENTIFIER USED TO IDENTIFY AN INDIVIDUAL. BIOMETRIC  INFORMA-
 TION  SHALL  NOT  INCLUDE  INFORMATION  DERIVED FROM ITEMS OR PROCEDURES
 EXCLUDED UNDER THE DEFINITION OF BIOMETRIC IDENTIFIERS.
   3. "CONFIDENTIAL AND SENSITIVE INFORMATION" MEANS PERSONAL INFORMATION
 THAT CAN BE USED TO UNIQUELY IDENTIFY AN INDIVIDUAL OR  AN  INDIVIDUAL'S
 ACCOUNT  OR PROPERTY WHICH SHALL INCLUDE, BUT SHALL NOT BE LIMITED TO, A
 GENETIC MARKER, GENETIC TESTING INFORMATION, A UNIQUE IDENTIFIER  NUMBER
 TO  LOCATE  AN  ACCOUNT OR PROPERTY, AN ACCOUNT NUMBER, A PERSONAL IDEN-
 TIFICATION NUMBER, A PASS CODE, A DRIVER'S LICENSE NUMBER, OR  A  SOCIAL
 SECURITY NUMBER.
   4.  "PRIVATE  ENTITY"  MEANS ANY INDIVIDUAL, PARTNERSHIP, CORPORATION,
 LIMITED LIABILITY COMPANY, ASSOCIATION, OR OTHER GROUP,  HOWEVER  ORGAN-
 IZED.  A  PRIVATE  ENTITY  SHALL NOT INCLUDE A STATE OR LOCAL GOVERNMENT
 AGENCY OR ANY COURT IN THE STATE, A CLERK OF THE COURT, OR  A  JUDGE  OR
 JUSTICE THEREOF.
   5. "WRITTEN RELEASE" MEANS INFORMED WRITTEN CONSENT OR, IN THE CONTEXT
 OF  EMPLOYMENT,  A  RELEASE  EXECUTED  BY  AN EMPLOYEE AS A CONDITION OF
 EMPLOYMENT.
   § 676-B. RETENTION; COLLECTION; DISCLOSURE; DESTRUCTION. 1. A  PRIVATE
 ENTITY  IN  POSSESSION OF BIOMETRIC IDENTIFIERS OR BIOMETRIC INFORMATION
 MUST DEVELOP A WRITTEN POLICY, MADE AVAILABLE TO THE PUBLIC,  ESTABLISH-
 ING A RETENTION SCHEDULE AND GUIDELINES FOR PERMANENTLY DESTROYING BIOM-
 ETRIC IDENTIFIERS AND BIOMETRIC INFORMATION WHEN THE INITIAL PURPOSE FOR
 COLLECTING  OR OBTAINING SUCH IDENTIFIERS OR INFORMATION HAS BEEN SATIS-
 FIED OR WITHIN THREE YEARS OF THE INDIVIDUAL'S LAST INTERACTION WITH THE
 PRIVATE ENTITY, WHICHEVER  OCCURS  FIRST.  ABSENT  A  VALID  WARRANT  OR
 SUBPOENA  ISSUED  BY A COURT OF COMPETENT JURISDICTION, A PRIVATE ENTITY
 IN POSSESSION OF BIOMETRIC IDENTIFIERS  OR  BIOMETRIC  INFORMATION  MUST
 COMPLY  WITH  ITS  ESTABLISHED RETENTION SCHEDULE AND DESTRUCTION GUIDE-
 LINES.
   2. NO PRIVATE ENTITY MAY COLLECT, CAPTURE, PURCHASE,  RECEIVE  THROUGH
 TRADE,  OR OTHERWISE OBTAIN A PERSON'S OR A CUSTOMER'S BIOMETRIC IDENTI-
 FIER OR BIOMETRIC INFORMATION, UNLESS IT FIRST:
   (A) INFORMS THE SUBJECT OR THE SUBJECT'S LEGALLY AUTHORIZED  REPRESEN-
 TATIVE  IN  WRITING THAT A BIOMETRIC IDENTIFIER OR BIOMETRIC INFORMATION
 IS BEING COLLECTED OR STORED;
   (B) INFORMS THE SUBJECT OR THE SUBJECT'S LEGALLY AUTHORIZED  REPRESEN-
 TATIVE IN WRITING OF THE SPECIFIC PURPOSE AND LENGTH OF TERM FOR WHICH A
 BIOMETRIC  IDENTIFIER  OR  BIOMETRIC  INFORMATION  IS  BEING  COLLECTED,
 STORED, AND USED; AND
   (C) RECEIVES A WRITTEN RELEASE EXECUTED BY THE SUBJECT OF  THE  BIOME-
 TRIC  IDENTIFIER  OR  BIOMETRIC  INFORMATION  OR  THE  SUBJECT'S LEGALLY
 AUTHORIZED REPRESENTATIVE.
   3. NO PRIVATE ENTITY IN POSSESSION OF A BIOMETRIC IDENTIFIER OR BIOME-
 TRIC INFORMATION MAY SELL, LEASE, TRADE,  OR  OTHERWISE  PROFIT  FROM  A
 PERSON'S OR A CUSTOMER'S BIOMETRIC IDENTIFIER OR BIOMETRIC INFORMATION.
   4. NO PRIVATE ENTITY IN POSSESSION OF A BIOMETRIC IDENTIFIER OR BIOME-
 TRIC  INFORMATION  MAY  DISCLOSE, REDISCLOSE, OR OTHERWISE DISSEMINATE A
 PERSON'S OR A CUSTOMER'S BIOMETRIC IDENTIFIER OR  BIOMETRIC  INFORMATION
 UNLESS:

 A. 9793                             3
 
   (A)  THE  SUBJECT OF THE BIOMETRIC IDENTIFIER OR BIOMETRIC INFORMATION
 OR THE SUBJECT'S  LEGALLY  AUTHORIZED  REPRESENTATIVE  CONSENTS  TO  THE
 DISCLOSURE OR REDISCLOSURE;
   (B)  THE  DISCLOSURE OR REDISCLSOURE COMPLETES A FINANCIAL TRANSACTION
 REQUESTED OR AUTHORIZED BY THE SUBJECT OF THE  BIOMETRIC  IDENTIFIER  OR
 THE  BIOMETRIC INFORMATION OR THE SUBJECT'S LEGALLY AUTHORIZED REPRESEN-
 TATIVE;
   (C) THE DISCLOSURE OR REDISCLOSURE IS REQUIRED BY  FEDERAL,  STATE  OR
 LOCAL LAW OR MUNICIPAL ORDINANCE; OR
   (D) THE DISCLOSURE IS REQUIRED PURSUANT TO A VALID WARRANT OR SUBPOENA
 ISSUED BY A COURT OF COMPETENT JURISDICTION.
   5.  A PRIVATE ENTITY IN POSSESSION OF A BIOMETRIC IDENTIFIER OR BIOME-
 TRIC INFORMATION SHALL:
   (A) STORE, TRANSMIT, AND PROTECT FROM DISCLOSURE ALL BIOMETRIC IDENTI-
 FIERS AND BIOMETRIC INFORMATION USING THE REASONABLE  STANDARD  OF  CARE
 WITHIN THE PRIVATE ENTITY'S INDUSTRY; AND
   (B) STORE, TRANSMIT, AND PROTECT FROM DISCLOSURE ALL BIOMETRIC IDENTI-
 FIERS  AND BIOMETRIC INFORMATION IN A MANNER THAT IS THE SAME AS OR MORE
 PROTECTIVE THAN THE MANNER IN WHICH THE PRIVATE  ENTITY  STORES,  TRANS-
 MITS, AND PROTECTS OTHER CONFIDENTIAL AND SENSITIVE INFORMATION.
   §  676-C. RIGHT OF ACTION. ANY PERSON AGGRIEVED BY A VIOLATION OF THIS
 ARTICLE SHALL HAVE A RIGHT OF ACTION IN SUPREME COURT AGAINST AN OFFEND-
 ING PARTY. A PREVAILING PARTY MAY RECOVER FOR EACH VIOLATION:
   1. AGAINST A PRIVATE ENTITY THAT NEGLIGENTLY VIOLATES A  PROVISION  OF
 THIS  ARTICLE,  LIQUIDATED  DAMAGES  OF  ONE  THOUSAND DOLLARS OR ACTUAL
 DAMAGES, WHICHEVER IS GREATER;
   2. AGAINST A PRIVATE ENTITY THAT INTENTIONALLY OR RECKLESSLY  VIOLATES
 A PROVISION OF THIS ARTICLE, LIQUIDATED DAMAGES OF FIVE THOUSAND DOLLARS
 OR ACTUAL DAMAGES, WHICHEVER IS GREATER;
   3. REASONABLE ATTORNEYS' FEES AND COSTS, INCLUDING EXPERT WITNESS FEES
 AND OTHER LITIGATION EXPENSES; AND
   4. OTHER RELIEF, INCLUDING AN INJUNCTION, AS THE COURT MAY DEEM APPRO-
 PRIATE.
   §  676-D.  CONSTRUCTION  WITH  OTHER  LAWS. 1. NOTHING IN THIS ARTICLE
 SHALL BE CONSTRUED TO IMPACT THE ADMISSION  OR  DISCOVERY  OF  BIOMETRIC
 IDENTIFIERS  AND  BIOMETRIC INFORMATION IN ANY ACTION OF ANY KIND IN ANY
 COURT, OR BEFORE ANY TRIBUNAL, BOARD, AGENCY, OR PERSON.
   2. NOTHING IN THIS ARTICLE SHALL BE CONSTRUED  TO  CONFLICT  WITH  THE
 FEDERAL HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996.
   3.  NOTHING IN THE ARTICLE SHALL BE DEEMED TO APPLY IN ANY MANNER TO A
 FINANCIAL INSTITUTION OR AN AFFILIATE OF A FINANCIAL INSTITUTION THAT IS
 SUBJECT TO TITLE V OF THE FEDERAL GRAMM-LEACH-BLILEY ACT OF 1999.
   4. NOTHING IN THIS ARTICLE SHALL BE CONSTRUED TO APPLY TO  A  CONTRAC-
 TOR,  SUBCONTRACTOR, OR AGENT OF A STATE AGENCY OF LOCAL GOVERNMENT WHEN
 WORKING FOR THAT STATE AGENCY OF LOCAL GOVERNMENT.
   § 2. This act shall take effect on the ninetieth day  after  it  shall
 have become a law.