NY State Senate Bill 2021-S79

Senate Bill S79

2021-2022 Legislative Session

Prohibits the use of biometric surveillance technology by law enforcement; establishes the biometric surveillance regulation task force; and provides for the expiration and repeal of certain provisions

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Archive: Last Bill Status - In Senate Committee Internet And Technology Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 05, 2022	referred to internet and technology
Feb 24, 2021	committee discharged and committed to internet and technology
Jan 06, 2021	referred to finance

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2021-S79 (ACTIVE) - Details

See Assembly Version of this Bill:: A5492
Current Committee:: Senate Internet And Technology
Law Section:: Executive Law
Laws Affected:: Add §§837-w & 235, Exec L
Versions Introduced in Other Legislative Sessions:: 2019-2020: S7572, A9767
2023-2024: S1609, A1891

2021-S79 (ACTIVE) - Summary

Prohibits the use of biometric surveillance technology by law enforcement; establishes the biometric surveillance regulation task force; provides for the expiration and repeal of certain provisions.

2021-S79 (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S79

SPONSOR: HOYLMAN
 
TITLE OF BILL:

An act to amend the executive law, in relation to prohibiting the use of
biometric surveillance technology by law enforcement; establishing the
biometric surveillance regulation task force; and providing for the
repeal of certain provisions upon expiration thereof

 
PURPOSE OR GENERAL IDEA OF BILL:

To prohibit the use of biometric surveillance technology by law enforce-
ment and establish a task force to examine the issue, determine whether
the use of such technology should be allowed, and if so, propose a
comprehensive set of standards for use of such technology.

 
SUMMARY OF PROVISIONS:

Section 1 of the bill sets forth legislative intent.

Section 2 of the bill creates a new Section 837-u of the Executive Law
to prohibit the use of biometric surveillance systems by police offi-
cers, peace officers, and police agencies, with certain exceptions for
lawful and authorized DNA comparison, fingerprinting, internal security
systems, and other purposes. The new section 837-u defines the terms
"biometric information", "biometric surveillance", "biometric surveil-
lance system", "surveillance information", and "use".

Section 3 of the bill creates a new Section 234 of the Executive Law to
enact statutory provisions consistent with the provisions of

Section 837-u that would apply to members of the State Police.

Section 4 of the bill establishes the Task Force on the Regulation of
Biometric Surveillance, consisting of twelve members including represen-
tatives from the State Police, the Division of Criminal Justice
Services, the NYPD, and members appointed by the Governor and Legisla-
ture with expertise in data security, civil rights and liberties, biome-
tric surveillance, legal representation, and/or criminal defense.

The Task Force would be directed to study the current and proposed use
of biometric surveillance systems by governments and/or law enforcement,
and current laws, rules, regulations, and policies governing their use.
It would also be directed to evaluate the effectiveness, efficacy, and
accuracy of such systems, as well as their potential harms, taking into
account the impact of such systems on certain vulnerable or protected
populations.

The Task Force would also be directed to evaluate whether the use of
such systems by law enforcement should be permitted, and if so, the Task
Force must propose a comprehensive framework of recommendations for
legislation, regulations, and standards regarding the use of such
systems. The bill specifies certain guidelines that the Task Force must
follow when developing that framework. The bill requires the Task Force
to transmit a report of its findings to the Governor and Legislature no
sooner than January 1, 2024 and no later than January 1, 2025.

Section 5 of the bill establishes the bill's effective date.
 
JUSTIFICATION:

As the use of biometric surveillance technology becomes increasingly
common, concerns have been raised by advocates for privacy and civil
liberties relating to the effectiveness and ethical implications of such
technology.

Significant evidence exists to suggest that facial recognition technolo-
gy in particular is less accurate when analyzing faces of color than
when analyzing white faces. A 2018 study from MIT and Stanford Universi-
ty examining commercially available facial analysis programs created by
three major companies found that the three programs' rates of error in
determining the gender of light-skinned men were never worse than 0.8%,
but the rates of error for dark-skinned women were significantly higher,
with two of the programs showing an error rate of more than 34%.

The American Civil Liberties Union (ACLU) ran a test of another widely
available facial recognition tool by comparing photos of members of
Congress with a database of mugshots, and the software incorrectly
matched 28 members of Congress with individuals who had been arrested
for a crime. A disproportionate number of the incorrect matches were
people of color.

This evidence of bias and inaccuracy is particularly troubling in the
context of law enforcement, where an incorrect match has the potential
to have devastating consequences.

In June of 2019, Axon (formerly Taser), a major manufacturer of body-
worn cameras for police departments across the country including the
NYPD, publicly stated that they "will not be commercializing face match-
ing products" on their body cameras due to bias concerns, saying that
"face recognition technology is not currently reliable enough to
ethically justify its use on body-worn cameras." Axon added, "At the
least, face recognition technology should not be deployed until the
technology performs with far greater accuracy and performs equally well
across races, ethnicities, genders, and other identity groups."

Despite these major concerns, police departments across the country
continue to partner with major corporations actively marketing facial
recognition software. Agreements with certain companies have given law
enforcement access to home security cameras and other smart devices
capable of either employing biometric surveillance technology or supply-
ing footage or data to be run through biometric surveillance systems.

The harms of the overuse of this technology are not theoretical. For an
example of how it can he misused, we need only look to China, which
maintains a vast DNA database and has a massive network of surveillance
cameras capable of using real-time automated facial recognition to moni-
tor the movements of people within its borders.  The technology has been
used to monitor, track, and profile Uighurs, an ethnic Muslim minority
within China.

Here in the United States, the use of this emerging technology is almost
entirely unregulated, leaving weighty decisions regarding the ethical
implications of its use solely in the hands of law enforcement. Given
the serious concerns that have been raised about presently available
biometric surveillance technology, New York's law enforcement should not

presently be permitted to deploy or rely on it as a policing tool that
could potentially lead to wrongful targeting, arrest or imprisonment.

This bill would prohibit such practice and convene a state Task Force to
examine the issue in depth and propose a comprehensive set of standards
for use of such technology in the future if it is to be allowed.

 
PRIOR LEGISLATIVE HISTORY:

S.7572 of 2019-2020 (Hoylman): Died in Internet and Technology
A.9767 of 2019-2020 (Glick): Died in Government Operations

 
FISCAL IMPLICATIONS FOR STATE D LOCAL GOVERNMENTS:

To be determined.

 
EFFECTIVE DATE:
This act shall take effect immediately.

2021-S79 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    79
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                                (PREFILED)
 
                              January 6, 2021
                                ___________
 
 Introduced  by Sens. HOYLMAN, BAILEY, BIAGGI, KRUEGER, SEPULVEDA -- read
   twice and ordered printed, and when printed to  be  committed  to  the
   Committee on Finance
 
 AN ACT to amend the executive law, in relation to prohibiting the use of
   biometric surveillance technology by law enforcement; establishing the
   biometric  surveillance  regulation  task force; and providing for the
   repeal of certain provisions upon expiration thereof
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1. Legislative intent. The legislature finds and declares the
 following:
   (a) The use of biometric  surveillance  technology  has  been  largely
 unregulated  by  all  levels of government in the United States to date,
 allowing its unfettered use by private  entities,  government,  and  law
 enforcement  with  little to no requirements or restrictions relating to
 use, data retention, privacy protections, and use of information derived
 from such systems in law enforcement investigations. In New  York,  this
 lack  of regulation and oversight has led to concerning practices by law
 enforcement, such as including sealed  mugshots  and  arrest  photos  of
 juveniles in facial recognition databases and running photos of celebri-
 ty lookalikes through facial recognition software to attempt to identify
 potential suspects.
   (b)  Studies  of currently available biometric surveillance technology
 demonstrate that such technology's consistency  and  accuracy  can  vary
 widely  based on age, gender, sex, race, and other factors, and has been
 found to be particularly inaccurate when used on  women,  young  people,
 and people of color.
   (c)  These accuracy concerns are particularly troubling in the context
 of this technology's ongoing and increasing use by law enforcement.  New
 York's  law  enforcement  should  not rely on technology that has demon-

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets

                       [ ] is old law to be omitted.
                                                            LBD02388-01-1

 S. 79                               2
 
 strated accuracy issues, as such practice risks the wrongful  targeting,
 interrogation, detention, or even conviction of an innocent person based
 on erroneous data.
   (d)  The  largest  U.S.  supplier  of police body cameras has publicly
 stated that  this  technology  "is  not  currently  reliable  enough  to
 ethically  justify  its  use," and other major companies working on this
 technology have chosen not to offer it for general  use  until  concerns
 about the technology's accuracy are resolved.
   (e) In addition to accuracy concerns, the continuous use of this tech-
 nology  for broad, untargeted surveillance purposes constitutes an unac-
 ceptable mass violation of privacy and could chill New Yorkers' right to
 free speech and freedom of assembly.
   (f) In order to protect the personal data, civil rights, civil  liber-
 ties,  and  due process rights of all New Yorkers, the use of this tech-
 nology by law enforcement should not currently be  permitted,  and  more
 study and research should be conducted into the impacts of this technol-
 ogy  before  determining  whether  it  should be authorized for use, and
 under what circumstances such use should be permitted.
   § 2. The executive law is amended by adding a  new  section  837-w  to
 read as follows:
   §  837-W.  USE OF BIOMETRIC SURVEILLANCE SYSTEMS PROHIBITED. 1.  DEFI-
 NITIONS. FOR THE PURPOSES OF THIS SECTION,  THE  FOLLOWING  TERMS  SHALL
 HAVE THE FOLLOWING MEANINGS:
   (A)   "BIOMETRIC  INFORMATION"  MEANS  ANY  MEASURABLE  PHYSIOLOGICAL,
 BIOLOGICAL OR BEHAVIORAL CHARACTERISTICS THAT  ARE  ATTRIBUTABLE  TO  AN
 INDIVIDUAL PERSON, INCLUDING FACIAL CHARACTERISTICS, FINGERPRINT CHARAC-
 TERISTICS,  HAND  CHARACTERISTICS, EYE CHARACTERISTICS, VOCAL CHARACTER-
 ISTICS, AND ANY OTHER PHYSICAL CHARACTERISTICS THAT CAN BE USED,  SINGLY
 OR  IN  COMBINATION WITH EACH OTHER OR WITH OTHER INFORMATION, TO ESTAB-
 LISH INDIVIDUAL IDENTITY.   EXAMPLES OF BIOMETRIC  INFORMATION  INCLUDE,
 BUT  ARE  NOT  LIMITED  TO,  FINGERPRINTS,  HANDPRINTS,  RETINA AND IRIS
 PATTERNS, DNA SEQUENCE, VOICE, GAIT, AND FACIAL GEOMETRY.
   (B)(I) "BIOMETRIC SURVEILLANCE" MEANS EITHER OF THE  FOLLOWING,  ALONE
 OR IN COMBINATION:
   (1)  AN AUTOMATED OR SEMI-AUTOMATED PROCESS BY WHICH A PERSON IS IDEN-
 TIFIED OR ATTEMPTED TO BE IDENTIFIED BASED ON THEIR  BIOMETRIC  INFORMA-
 TION,  INCLUDING  IDENTIFICATION  OF  KNOWN  OR  UNKNOWN  INDIVIDUALS OR
 GROUPS; AND/OR
   (2) AN AUTOMATED OR SEMI-AUTOMATED PROCESS THAT GENERATES, OR  ASSISTS
 IN  GENERATING,  SURVEILLANCE  INFORMATION  ABOUT AN INDIVIDUAL BASED ON
 THEIR BIOMETRIC INFORMATION.
   (II) "BIOMETRIC SURVEILLANCE" SHALL NOT INCLUDE THE USE  OF  AN  AUTO-
 MATED OR SEMI-AUTOMATED PROCESS FOR THE PURPOSES OF:
   (1)  REDACTING  A RECORDING FOR RELEASE OR DISCLOSURE OUTSIDE A POLICE
 AGENCY TO PROTECT THE PRIVACY OF A SUBJECT DEPICTED IN THE RECORDING, IF
 THE PROCESS DOES NOT GENERATE OR RESULT IN THE RETENTION OF  ANY  BIOME-
 TRIC INFORMATION OR SURVEILLANCE INFORMATION;
   (2)  THE  STATE  DNA  IDENTIFICATION  INDEX  IN  ACCORDANCE  WITH  THE
 PROVISIONS OF SECTION NINE HUNDRED NINETY-FIVE-C OF THIS CHAPTER; OR
   (3) THE TAKING, SUBMISSION, AND PROCESSING  OF  FINGERPRINTS  FOR  THE
 STATE  IDENTIFICATION  BUREAU, PROVIDED THAT SUCH TAKING, SUBMISSION AND
 PROCESSING IS EXPLICITLY AUTHORIZED BY LAW.
   (C) "BIOMETRIC SURVEILLANCE SYSTEM" MEANS  ANY  COMPUTER  SOFTWARE  OR
 APPLICATION  THAT  PERFORMS BIOMETRIC SURVEILLANCE, BUT DOES NOT INCLUDE
 THE STATE DNA IDENTIFICATION INDEX  OR  THE  FINGERPRINT  IDENTIFICATION
 PORTION OF THE STATE AUTOMATED BIOMETRIC IDENTIFICATION SYSTEM.

 S. 79                               3
 
   (D)  "POLICE  AGENCY", "POLICE OFFICER" AND "PEACE OFFICER" SHALL HAVE
 THE SAME MEANINGS AS DEFINED UNDER SECTION EIGHT HUNDRED THIRTY-FIVE  OF
 THIS ARTICLE.
   (E) "SURVEILLANCE INFORMATION" MEANS EITHER OF THE FOLLOWING, ALONE OR
 IN COMBINATION:
   (I) ANY INFORMATION ABOUT A KNOWN OR UNKNOWN INDIVIDUAL, INCLUDING BUT
 NOT  LIMITED  TO,  A  PERSON'S  NAME,  DATE OF BIRTH, GENDER, AGGREGATED
 LOCATION DATA, OR CRIMINAL BACKGROUND; AND/OR
   (II) ANY INFORMATION DERIVED FROM BIOMETRIC INFORMATION, INCLUDING BUT
 NOT LIMITED TO, ASSESSMENTS ABOUT AN INDIVIDUAL'S  SENTIMENT,  STATE  OF
 MIND OR LEVEL OF DANGEROUSNESS.
   (F) "USE" MEANS EITHER OF THE FOLLOWING, ALONE OR IN COMBINATION:
   (I)  THE  DIRECT  USE  OF  A BIOMETRIC SURVEILLANCE SYSTEM BY A POLICE
 AGENCY, POLICE OFFICER OR PEACE OFFICER; AND/OR
   (II) A REQUEST BY A POLICE OFFICER OR  PEACE  OFFICER  THAT  A  POLICE
 AGENCY  OR  OTHER  THIRD  PARTY  USE  A BIOMETRIC SURVEILLANCE SYSTEM ON
 BEHALF OF THE REQUESTING ENTITY.
   2. NO POLICE AGENCY, POLICE OFFICER OR PEACE  OFFICER  SHALL  ACQUIRE,
 POSSESS,  ACCESS,  INSTALL,  ACTIVATE  OR USE ANY BIOMETRIC SURVEILLANCE
 SYSTEM, OR ANY BIOMETRIC INFORMATION OR SURVEILLANCE INFORMATION DERIVED
 FROM THE USE OF A BIOMETRIC SURVEILLANCE SYSTEM  BY  ANY  OTHER  ENTITY,
 WHILE  IN  THE COURSE OF THEIR JOB DUTIES OR WITH REGARD TO ANY INFORMA-
 TION OBTAINED, PROCESSED, OR ACCESSED IN THE COURSE OF THOSE DUTIES.
   3. IN ADDITION TO ANY OTHER SANCTIONS, PENALTIES OR REMEDIES  PROVIDED
 BY LAW, A PERSON MAY BRING AN ACTION FOR EQUITABLE OR DECLARATORY RELIEF
 IN  A  COURT  OF  COMPETENT JURISDICTION AGAINST A POLICE AGENCY, POLICE
 OFFICER OR PEACE OFFICER THAT VIOLATES THIS SECTION.
   4. THIS SECTION DOES NOT PRECLUDE A POLICE AGENCY, POLICE  OFFICER  OR
 PEACE OFFICER FROM:
   (A)  LAWFULLY  USING  A  MOBILE  FINGERPRINT  SCANNING DEVICE DURING A
 LAWFUL DETENTION TO IDENTIFY A PERSON WHO DOES NOT HAVE PROOF  OF  IDEN-
 TIFICATION  IF A POLICE OFFICER OR PEACE OFFICER HAS REASONABLE CAUSE TO
 ARREST SUCH PERSON OR TO ISSUE TO AND SERVE UPON SUCH PERSON AN  APPEAR-
 ANCE  TICKET,  PROVIDED  THAT  ANY BIOMETRIC OR SURVEILLANCE INFORMATION
 RETAINED THROUGH THE USE OF SUCH DEVICE  MAY  BE  USED  SOLELY  FOR  THE
 PURPOSES  PERMITTED  IN  THIS  PARAGRAPH  OR  OTHER  PURPOSES EXPLICITLY
 AUTHORIZED BY LAW;
   (B) ACCESSING DNA COMPARISONS BETWEEN FORENSIC EVIDENCE AND DESIGNATED
 OFFENDERS, AS DEFINED IN SUBDIVISION SEVEN OF SECTION NINE HUNDRED NINE-
 TY-FIVE OF THIS CHAPTER, THROUGH  THE  STATE  DNA  IDENTIFICATION  INDEX
 PURSUANT TO SECTION NINE HUNDRED NINETY-FIVE-C OF THIS CHAPTER;
   (C)  ACCESSING  FINGERPRINT  COMPARISONS USING THE STATEWIDE AUTOMATED
 BIOMETRIC IDENTIFICATION SYSTEM FOR THE PURPOSE OF  ROUTINE  BOOKING  OR
 CRIME SCENE COMPARISONS; OR
   (D) USING ANY LAWFULLY INSTALLED SECURITY SYSTEM THAT PROCESSES BIOME-
 TRIC  INFORMATION  SOLELY  FOR  THE PURPOSE OF VERIFYING THE IDENTITY OF
 MEMBERS, OFFICERS, EMPLOYEES, AGENTS, OR OTHER AFFILIATED STAFF  OF  THE
 POLICE  AGENCY  IN ORDER TO DETERMINE WHETHER SUCH PERSONS ARE PERMITTED
 TO ACCESS INFORMATION, GOODS, MATERIALS, AREAS, OR OTHER POSSESSIONS  OR
 PROPERTY BELONGING TO OR UNDER THE CUSTODY OF THE POLICE AGENCY.
   §  3. The executive law is amended by adding a new section 235 to read
 as follows:
   § 235. USE OF BIOMETRIC SURVEILLANCE SYSTEMS  PROHIBITED.  1.    DEFI-
 NITIONS.  FOR  THE  PURPOSES  OF THIS SECTION, THE FOLLOWING TERMS SHALL
 HAVE THE FOLLOWING MEANINGS:

 S. 79                               4

   (A)  "BIOMETRIC  INFORMATION"  MEANS  ANY  MEASURABLE   PHYSIOLOGICAL,
 BIOLOGICAL  OR  BEHAVIORAL  CHARACTERISTICS  THAT ARE ATTRIBUTABLE TO AN
 INDIVIDUAL PERSON, INCLUDING FACIAL CHARACTERISTICS, FINGERPRINT CHARAC-
 TERISTICS, HAND CHARACTERISTICS, EYE CHARACTERISTICS,  VOCAL  CHARACTER-
 ISTICS,  AND ANY OTHER PHYSICAL CHARACTERISTICS THAT CAN BE USED, SINGLY
 OR IN COMBINATION WITH EACH OTHER OR WITH OTHER INFORMATION,  TO  ESTAB-
 LISH  INDIVIDUAL  IDENTITY.   EXAMPLES OF BIOMETRIC INFORMATION INCLUDE,
 BUT ARE NOT  LIMITED  TO,  FINGERPRINTS,  HANDPRINTS,  RETINA  AND  IRIS
 PATTERNS, DNA SEQUENCE, VOICE, GAIT, AND FACIAL GEOMETRY.
   (B)  (I) "BIOMETRIC SURVEILLANCE" MEANS EITHER OF THE FOLLOWING, ALONE
 OR IN COMBINATION:
   (1) AN AUTOMATED OR SEMI-AUTOMATED PROCESS BY WHICH A PERSON IS  IDEN-
 TIFIED  OR  ATTEMPTED TO BE IDENTIFIED BASED ON THEIR BIOMETRIC INFORMA-
 TION, INCLUDING  IDENTIFICATION  OF  KNOWN  OR  UNKNOWN  INDIVIDUALS  OR
 GROUPS; AND/OR
   (2)  AN AUTOMATED OR SEMI-AUTOMATED PROCESS THAT GENERATES, OR ASSISTS
 IN GENERATING, SURVEILLANCE INFORMATION ABOUT  AN  INDIVIDUAL  BASED  ON
 THEIR BIOMETRIC INFORMATION.
   (II)  "BIOMETRIC  SURVEILLANCE"  SHALL NOT INCLUDE THE USE OF AN AUTO-
 MATED OR SEMI-AUTOMATED PROCESS FOR THE PURPOSES OF:
   (1) REDACTING A RECORDING FOR RELEASE OR DISCLOSURE OUTSIDE THE  STATE
 POLICE TO PROTECT THE PRIVACY OF A SUBJECT DEPICTED IN THE RECORDING, IF
 THE  PROCESS  DOES NOT GENERATE OR RESULT IN THE RETENTION OF ANY BIOME-
 TRIC INFORMATION OR SURVEILLANCE INFORMATION;
   (2)  THE  STATE  DNA  IDENTIFICATION  INDEX  IN  ACCORDANCE  WITH  THE
 PROVISIONS OF SECTION NINE HUNDRED NINETY-FIVE-C OF THIS CHAPTER; OR
   (3)  THE  TAKING,  SUBMISSION,  AND PROCESSING OF FINGERPRINTS FOR THE
 STATE IDENTIFICATION BUREAU, PROVIDED THAT SUCH TAKING,  SUBMISSION  AND
 PROCESSING IS EXPLICITLY AUTHORIZED BY LAW.
   (C)  "BIOMETRIC  SURVEILLANCE  SYSTEM"  MEANS ANY COMPUTER SOFTWARE OR
 APPLICATION THAT PERFORMS BIOMETRIC SURVEILLANCE.
   (D) "SURVEILLANCE INFORMATION" MEANS EITHER OF THE FOLLOWING, ALONE OR
 IN COMBINATION:
   (I) ANY INFORMATION ABOUT A KNOWN OR UNKNOWN INDIVIDUAL, INCLUDING BUT
 NOT LIMITED TO, A PERSON'S  NAME,  DATE  OF  BIRTH,  GENDER,  AGGREGATED
 LOCATION DATA, OR CRIMINAL BACKGROUND; AND/OR
   (II) ANY INFORMATION DERIVED FROM BIOMETRIC INFORMATION, INCLUDING BUT
 NOT  LIMITED  TO,  ASSESSMENTS ABOUT AN INDIVIDUAL'S SENTIMENT, STATE OF
 MIND OR LEVEL OF DANGEROUSNESS.
   (E) "USE" MEANS EITHER OF THE FOLLOWING, ALONE OR IN COMBINATION:
   (I) THE DIRECT USE OF A BIOMETRIC SURVEILLANCE SYSTEM BY A  MEMBER  OF
 THE STATE POLICE; AND/OR
   (II) A REQUEST BY A MEMBER OF THE STATE POLICE THAT A POLICE AGENCY OR
 OTHER  THIRD  PARTY USE A BIOMETRIC SURVEILLANCE SYSTEM ON BEHALF OF THE
 REQUESTING ENTITY.
   2. NO MEMBER OF THE  STATE  POLICE  SHALL  ACQUIRE,  POSSESS,  ACCESS,
 INSTALL, ACTIVATE OR USE ANY BIOMETRIC SURVEILLANCE SYSTEM, OR ANY BIOM-
 ETRIC  INFORMATION OR SURVEILLANCE INFORMATION DERIVED FROM THE USE OF A
 BIOMETRIC SURVEILLANCE SYSTEM BY ANY OTHER ENTITY, WHILE IN  THE  COURSE
 OF  THEIR  JOB  DUTIES OR WITH REGARD TO ANY INFORMATION OBTAINED, PROC-
 ESSED, OR ACCESSED IN THE COURSE OF THOSE DUTIES.
   3. IN ADDITION TO ANY OTHER SANCTIONS, PENALTIES OR REMEDIES  PROVIDED
 BY LAW, A PERSON MAY BRING AN ACTION FOR EQUITABLE OR DECLARATORY RELIEF
 IN  A  COURT  OF  COMPETENT  JURISDICTION  AGAINST A MEMBER OF THE STATE
 POLICE THAT VIOLATES THIS SECTION.
   4. THIS SECTION DOES NOT PRECLUDE A MEMBER OF THE STATE POLICE FROM:

 S. 79                               5

   (A) LAWFULLY USING A  MOBILE  FINGERPRINT  SCANNING  DEVICE  DURING  A
 LAWFUL  DETENTION  TO IDENTIFY A PERSON WHO DOES NOT HAVE PROOF OF IDEN-
 TIFICATION IF A MEMBER OF THE  STATE  POLICE  HAS  REASONABLE  CAUSE  TO
 ARREST  SUCH PERSON OR TO ISSUE TO AND SERVE UPON SUCH PERSON AN APPEAR-
 ANCE  TICKET,  PROVIDED  THAT  ANY BIOMETRIC OR SURVEILLANCE INFORMATION
 RETAINED THROUGH THE USE OF SUCH DEVICE  MAY  BE  USED  SOLELY  FOR  THE
 PURPOSES  PERMITTED  IN  THIS  PARAGRAPH  OR  OTHER  PURPOSES EXPLICITLY
 AUTHORIZED BY LAW;
   (B) ACCESSING DNA COMPARISONS BETWEEN FORENSIC EVIDENCE AND DESIGNATED
 OFFENDERS, AS DEFINED IN SUBDIVISION SEVEN OF SECTION NINE HUNDRED NINE-
 TY-FIVE OF THIS CHAPTER, THROUGH  THE  STATE  DNA  IDENTIFICATION  INDEX
 PURSUANT TO SECTION NINE HUNDRED NINETY-FIVE-C OF THIS CHAPTER;
   (C)  ACCESSING  FINGERPRINT  COMPARISONS USING THE STATEWIDE AUTOMATED
 BIOMETRIC IDENTIFICATION SYSTEM FOR THE PURPOSE OF  ROUTINE  BOOKING  OR
 CRIME SCENE COMPARISONS; OR
   (D) USING ANY LAWFULLY INSTALLED SECURITY SYSTEM THAT PROCESSES BIOME-
 TRIC  INFORMATION  SOLELY  FOR  THE PURPOSE OF VERIFYING THE IDENTITY OF
 MEMBERS, OFFICERS, EMPLOYEES, AGENTS, OR OTHER AFFILIATED STAFF  OF  THE
 STATE POLICE IN ORDER TO DETERMINE WHETHER SUCH PERSONS ARE PERMITTED TO
 ACCESS  INFORMATION,  GOODS,  MATERIALS,  AREAS, OR OTHER POSSESSIONS OR
 PROPERTY BELONGING TO OR UNDER THE CUSTODY OF THE STATE POLICE.
   § 4. Biometric surveillance regulation task force.  1.  (a)  There  is
 hereby  established  the  task  force  on  the  regulation  of biometric
 surveillance, which shall consist of twelve members as follows:
   (a) the commissioner of the division of criminal justice  services  or
 his or her designee;
   (b) the superintendent of state police or his or her designee;
   (c)  the commissioner of the New York city police department or his or
 her designee; and
   (d) three members appointed by the governor, two members appointed  by
 the  temporary  president  of  the  senate, two members appointed by the
 speaker of the assembly, one member appointed by the minority leader  of
 the  senate,  and  one  member  appointed  by the minority leader of the
 assembly, each of which shall have expertise and experience  related  to
 at least one of the following fields, disciplines, or areas:
   (i) data privacy and data security;
   (ii)  civil  rights,  civil  liberties, and due process and procedural
 rights;
   (iii) the use and function of both  existing  and  emerging  biometric
 surveillance technology;
   (iv) legal representation of low-income individuals and/or tenants; or
   (v) criminal defense.
   (b)  The  chairperson of the task force shall be one of the governor's
 appointees, whom the governor shall so designate.
   (c) The task force shall meet as often as is necessary,  but  no  less
 than  three times per year, and at the call of the chairperson. Meetings
 may be held via teleconference. All members shall be provided with writ-
 ten notice reasonably in advance of each meeting  with  date,  time  and
 location of such meeting.
   (d)  Any  vacancies  on  the  task force shall be filled in the manner
 provided for in the initial appointment.
   (e) Members of the task force shall receive no compensation for  their
 services  but  shall be reimbursed for their actual expenses incurred in
 the performance of their duties in the work of the task force.
   (f) The task force is authorized to hold public hearings and  meetings
 and  to  consult  with any relevant stakeholders it deems appropriate or

 S. 79                               6
 
 necessary to seek assistance,  data,  or  other  information  that  will
 enable the task force to carry out its powers and duties.
   (g)  The  division of criminal justice services shall provide the task
 force with such facilities, assistance and data as will enable the  task
 force  to carry out its powers and duties. Additionally, all other agen-
 cies of the state or subdivisions thereof may, at  the  request  of  the
 chairperson  of the task force, provide the task force with such facili-
 ties, assistance, and data as will enable the task force  to  carry  out
 its powers and duties.
   2. The task force shall:
   (a)  Examine  the  current  and proposed use of biometric surveillance
 systems, as such term is defined pursuant to section 837-w of the execu-
 tive law, by governments and/or law  enforcement,  both  in  the  United
 States and abroad;
   (b)  Examine  current and proposed laws, rules, regulations, programs,
 and policies relating to the use of biometric surveillance systems;
   (c) Examine currently  available  biometric  surveillance  systems  or
 similar  technology,  and  evaluate  their  effectiveness, efficacy, and
 accuracy, provided that such evaluation shall include the use of  repre-
 sentative  datasets according to targeted populations, and disaggregated
 testing for demographic subgroups by age, gender identity, and race;
   (d) Evaluate the potential benefits and harms of the use of  biometric
 surveillance  systems,  taking  into account and analyzing the impact of
 the use of such systems on minorities,  women,  young  people,  seniors,
 lesbian,  gay,  bisexual, transgender, and gender-nonconforming individ-
 uals, and individuals with disabilities;
   (e) Evaluate whether law enforcement should be permitted to use biome-
 tric surveillance systems, and if it is the judgment of the  task  force
 that  such  use  should  be  permitted,  the  task force shall propose a
 comprehensive framework of recommendations for legislation,  regulations
 and  standards  regarding  the  use  of such systems by law enforcement,
 including, but not limited to:
   (i) permissible uses and purposes for use  of  biometric  surveillance
 systems by law enforcement;
   (ii)  prohibited  uses  and purposes for use of biometric surveillance
 systems by law enforcement;
   (iii) minimum  standards  for  accuracy  that  biometric  surveillance
 systems  must  achieve in order to be authorized for use by law enforce-
 ment, and auditing requirements to ensure compliance with  those  stand-
 ards;
   (iv)  standards  for  use,  management,  and protection of information
 derived from the use of biometric surveillance systems by  law  enforce-
 ment, including, but not limited to data retention, sharing, access, and
 audit trails;
   (v)  rigorous  protections  for  due process, privacy, free speech and
 association, and racial, gender, and religious equity;
   (vi) training requirements for law enforcement personnel authorized to
 use biometric surveillance systems;
   (vii) procedures to address instances in which a person is  wrongfully
 targeted,  arrested  or  interrogated  based  on  inaccurate information
 derived from the use of a biometric surveillance system; and
   (viii) disclosure requirements for broad public transparency  as  well
 as discovery procedures.
   3.  (a)  No  sooner than January 1, 2025, and no later than January 1,
 2026, the task force shall transmit a report to the governor, the tempo-
 rary president of the senate, the speaker of the assembly, the  minority

 S. 79                               7
 
 leader  of the senate, and the minority leader of the assembly detailing
 its findings and recommendations pursuant to  subdivision  two  of  this
 section.
   (b)  No later than ten days after the task force transmits such report
 to the governor, the temporary president of the senate, the  speaker  of
 the assembly, the minority leader of the senate, and the minority leader
 of  the  assembly,  the division of criminal justice services shall make
 such report available on its website.
   § 5. This act shall take effect  immediately,  provided  that  section
 four of this act shall expire and be deemed repealed 60 days after tran-
 smission  of  the report of the findings and recommendations of the task
 force to the governor, the temporary president of the senate, the speak-
 er of the assembly, the minority leader of the senate, and the  minority
 leader of the assembly, as provided in paragraph (a) of subdivision 3 of
 section  four  of  this act. Provided, however, that the commissioner of
 the department of criminal justice services shall notify the legislative
 bill drafting commission upon the transmission  of  the  report  of  the
 findings  of the task force, as provided in paragraph (a) of subdivision
 3 of section four of this act, in order that the commission may maintain
 an accurate and timely effective data base of the official text  of  the
 laws  of  the  state  of  New  York  in  furtherance of effectuating the
 provisions of section 44 of the legislative law and section 70-b of  the
 public officers law.

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Senate Bill S79

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Sponsored By

Brad Hoylman-Sigal

Archive: Last Bill Status - In Senate Committee Internet And Technology Committee

co-Sponsors

Jamaal T. Bailey

Alessandra Biaggi

Jabari Brisport

Robert Jackson

2021-S79 (ACTIVE) - Details

2021-S79 (ACTIVE) - Summary

2021-S79 (ACTIVE) - Sponsor Memo

2021-S79 (ACTIVE) - Bill Text download pdf

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