S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  1362--A
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 17, 2023
                                ___________
 
 Introduced  by  M.  of  A. GUNTHER, VANEL, EPSTEIN, REYES, SAYEGH, COOK,
   ZEBROWSKI, CRUZ, HYNDMAN, GLICK, DICKENS, SMULLEN, J. M. GIGLIO, McDO-
   NOUGH, BLANKENBUSH, LUPARDO, EACHUS, KELLES, BENDETT, GALLAHAN, SIMON,
   GANDOLFO, BRABENEC -- Multi-Sponsored by -- M. of A. ANGELINO --  read
   once  and referred to the Committee on Consumer Affairs and Protection
   -- recommitted to the Committee on Consumer Affairs and Protection  in
   accordance  with Assembly Rule 3, sec. 2 -- committee discharged, bill
   amended, ordered reprinted as amended and recommitted to said  commit-
   tee
 
 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. REGULATORY AUTHORITY AND ENFORCEMENT.
         676-D. CONSTRUCTION WITH OTHER LAWS.
         676-E. SEVERABILITY.
   §  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

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD01142-03-4
              

 A. 1362--A                          2
 
 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
 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 WITHIN  A  REASONABLE  TIME,
 BUT  IN  NO EVENT LATER THAN SIXTY DAYS, AFTER IT IS NO LONGER NECESSARY
 TO MAINTAIN FOR THE PERMISSIBLE PURPOSE OR PURPOSES  IDENTIFIED  IN  THE
 NOTICE OR FOR WHICH THE INDIVIDUAL PROVIDED VALID AUTHORIZATION OR WITH-
 IN  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 GUIDELINES.
   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
 A. 1362--A                          3
 
 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) 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 REDISCLOSURE 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. REGULATORY AUTHORITY  AND  ENFORCEMENT.  1.(A)  THE  ATTORNEY
 GENERAL  IS  AUTHORIZED  AND  EMPOWERED  TO ADOPT, PROMULGATE, AMEND AND
 RESCIND SUITABLE RULES AND REGULATIONS TO CARRY OUT  THE  PROVISIONS  OF
 THIS  ARTICLE,  INCLUDING  RULES  GOVERNING  THE FORM AND CONTENT OF ANY
 DISCLOSURES OR COMMUNICATIONS REQUIRED BY THIS ARTICLE.
   (B) WHENEVER IT APPEARS TO THE    ATTORNEY    GENERAL,  EITHER    UPON
 COMPLAINT  OR  OTHERWISE,  THAT  ANY PERSON OR PERSONS HAS ENGAGED IN OR
 IS ABOUT TO ENGAGE IN ANY OF THE ACTS OR PRACTICES  STATED TO  BE UNLAW-
 FUL    UNDER   THIS ARTICLE, THE ATTORNEY GENERAL MAY BRING AN ACTION OR
 SPECIAL PROCEEDING IN THE NAME AND ON BEHALF OF THE PEOPLE  OF THE STATE
 OF NEW YORK TO ENJOIN ANY VIOLATION OF THIS ARTICLE, TO OBTAIN  RESTITU-
 TION  OF  ANY  MONEYS OR PROPERTY OBTAINED DIRECTLY OR INDIRECTLY BY ANY
 SUCH  VIOLATION,  TO   OBTAIN   DISGORGEMENT   OF ANY  PROFITS  OBTAINED
 DIRECTLY  OR INDIRECTLY BY ANY SUCH VIOLATION, TO OBTAIN CIVIL PENALTIES
 OF  NOT  MORE  THAN TWENTY THOUSAND DOLLARS PER VIOLATION, AND TO OBTAIN
 ANY SUCH OTHER AND FURTHER RELIEF AS THE COURT MAY DEEM PROPER,  INCLUD-
 ING PRELIMINARY RELIEF.
   (C)  EACH  INSTANCE  OF  UNLAWFUL  PROCESSING  COUNTS  AS  A  SEPARATE
 VIOLATION.  UNLAWFUL PROCESSING OF THE PERSONAL DATA OF  MORE  THAN  ONE
 CONSUMER  COUNTS  AS A  SEPARATE  VIOLATION  AS  TO  EACH CONSUMER. EACH
 PROVISION OF THIS ARTICLE  THAT  IS  VIOLATED  COUNTS  AS    A  SEPARATE
 VIOLATION.
   (D)  IN  ASSESSING  THE  AMOUNT  OF PENALTIES, THE COURT MUST CONSIDER
 ANYONE  OR  MORE  OF  THE  RELEVANT  CIRCUMSTANCES  PRESENTED BY ANY  OF
 A. 1362--A                          4
 
 THE PARTIES, INCLUDING, BUT NOT LIMITED TO, THE NATURE  AND  SERIOUSNESS
 OF  THE  MISCONDUCT,  THE  NUMBER  OF VIOLATIONS, THE PERSISTENCE OF THE
 MISCONDUCT,  THE  LENGTH OF TIME OVER WHICH THE MISCONDUCT OCCURRED, THE
 WILLFULNESS OF THE  VIOLATOR'S  MISCONDUCT,  AND  THE  VIOLATOR'S FINAN-
 CIAL CONDITION.
   2.  ANY  ACTION  OR SPECIAL PROCEEDING BROUGHT BY THE ATTORNEY GENERAL
 PURSUANT TO THIS SECTION MUST BE COMMENCED WITHIN SIX YEARS OF THE  DATE
 ON WHICH THE ATTORNEY GENERAL BECAME AWARE OF THE VIOLATION.
   3.  IN CONNECTION WITH ANY PROPOSED ACTION OR SPECIAL PROCEEDING UNDER
 THIS SECTION, THE ATTORNEY GENERAL IS AUTHORIZED TO TAKE PROOF AND  MAKE
 A DETERMINATION OF THE RELEVANT FACTS, AND TO ISSUE SUBPOENAS IN ACCORD-
 ANCE  WITH  THE  CIVIL PRACTICE LAW AND RULES.  THE ATTORNEY GENERAL MAY
 ALSO REQUIRE SUCH OTHER DATA AND INFORMATION AS THE ATTORNEY GENERAL MAY
 DEEM  RELEVANT  AND  MAY  REQUIRE  WRITTEN  RESPONSES TO QUESTIONS UNDER
 OATH. SUCH POWER OF SUBPOENA AND EXAMINATION SHALL NOT ABATE  OR  TERMI-
 NATE  BY  REASON OF  ANY  ACTION  OR  SPECIAL  PROCEEDING BROUGHT BY THE
 ATTORNEY GENERAL UNDER THIS ARTICLE.
   4. ANY PERSON, WITHIN OR OUTSIDE THE STATE, WHO THE  ATTORNEY  GENERAL
 BELIEVES MAY BE IN POSSESSION, CUSTODY, OR CONTROL OF ANY BOOKS, PAPERS,
 OR  OTHER THINGS, OR MAY HAVE INFORMATION, RELEVANT TO ACTS OR PRACTICES
 STATED TO BE UNLAWFUL IN THIS ARTICLE IS SUBJECT TO  THE  SERVICE  OF  A
 SUBPOENA  ISSUED  BY  THE  ATTORNEY  GENERAL  PURSUANT  TO THIS SECTION.
 SERVICE MAY BE MADE IN ANY MANNER THAT IS AUTHORIZED FOR  SERVICE  OF  A
 SUBPOENA OR A SUMMONS BY THE STATE IN WHICH SERVICE IS MADE.
   5.(A)  FAILURE  TO  COMPLY  WITH  A  SUBPOENA  ISSUED PURSUANT TO THIS
 SECTION WITHOUT REASONABLE CAUSE TOLLS THE APPLICABLE STATUTES OF  LIMI-
 TATIONS  IN  ANY  ACTION  OR  SPECIAL PROCEEDING BROUGHT BY THE ATTORNEY
 GENERAL AGAINST THE NONCOMPLIANT PERSON THAT ARISES OUT OF THE  ATTORNEY
 GENERAL'S INVESTIGATION.
   (B)  IF A PERSON FAILS TO COMPLY WITH A SUBPOENA  ISSUED  PURSUANT  TO
 THIS SECTION, THE ATTORNEY GENERAL MAY MOVE  IN  THE  SUPREME  COURT  TO
 COMPEL COMPLIANCE.  IF THE COURT FINDS THAT THE SUBPOENA WAS AUTHORIZED,
 IT  SHALL  ORDER  COMPLIANCE AND MAY IMPOSE A CIVIL PENALTY OF UP TO ONE
 THOUSAND DOLLARS PER DAY OF NONCOMPLIANCE.
   (C) SUCH TOLLING AND CIVIL PENALTY SHALL BE IN ADDITION TO  ANY  OTHER
 PENALTIES OR REMEDIES PROVIDED BY LAW FOR NONCOMPLIANCE WITH A SUBPOENA.
   6.  THIS SECTION SHALL APPLY TO ALL ACTS DECLARED TO BE UNLAWFUL UNDER
 THIS ARTICLE, WHETHER OR NOT SUBJECT TO ANY OTHER LAW OF THIS STATE, AND
 SHALL NOT SUPERSEDE, AMEND OR REPEAL ANY OTHER LAW OF THIS  STATE  UNDER
 WHICH  THE  ATTORNEY GENERAL IS AUTHORIZED TO TAKE ANY ACTION OR CONDUCT
 ANY INQUIRY.
   §  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.
   § 676-E. SEVERABILITY. IF ANY PROVISION OF THIS ARTICLE, OR ANY APPLI-
 CATION OF ANY PROVISION OF THIS ARTICLE, IS HELD  TO  BE  INVALID,  THAT
 SHALL NOT AFFECT THE VALIDITY OR EFFECTIVENESS OF ANY OTHER PROVISION OF
 A. 1362--A                          5
 
 THIS ARTICLE, OR OF ANY OTHER APPLICATION OF ANY PROVISION OF THIS ARTI-
 CLE,  WHICH  CAN  BE GIVEN EFFECT WITHOUT THAT PROVISION OR APPLICATION;
 AND TO THAT END, THE PROVISIONS AND APPLICATIONS  OF  THIS  ARTICLE  ARE
 SEVERABLE.
   §  2.  This  act shall take effect on the ninetieth day after it shall
 have become a law.