S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    893
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                                (PREFILED)
 
                              January 6, 2021
                                ___________
 
 Introduced  by Sen. KAVANAGH -- read twice and ordered printed, and when
   printed to be committed to the Committee on Rules
 
 AN ACT to amend the state technology law, in  relation  to  the  use  of
   biometric  identifying technology; and to repeal certain provisions of
   the education law relating thereto
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1. Section 2-e of the education law, as added by a chapter of
 the laws of 2020 amending the education law relating to the use of biom-
 etric identifying technology, as proposed in legislative  bills  numbers
 S. 5140-B and A. 6787-D, is REPEALED.
   § 2. The state technology law is amended by adding a new section 106-b
 to read as follows:
   §  106-B.  USE  OF  BIOMETRIC IDENTIFYING TECHNOLOGY IN SCHOOLS. 1. AS
 USED IN THIS SECTION:
   A. "BIOMETRIC IDENTIFYING TECHNOLOGY" SHALL MEAN  ANY  TOOL  USING  AN
 AUTOMATED OR SEMI-AUTOMATED PROCESS THAT ASSISTS IN VERIFYING A PERSON'S
 IDENTITY BASED ON A PERSON'S BIOMETRIC INFORMATION.
   B. "BIOMETRIC INFORMATION" SHALL MEAN ANY MEASURABLE PHYSICAL, PHYSIO-
 LOGICAL OR BEHAVIORAL CHARACTERISTICS THAT ARE ATTRIBUTABLE TO A PERSON,
 INCLUDING BUT NOT LIMITED TO FACIAL CHARACTERISTICS, FINGERPRINT CHARAC-
 TERISTICS,  HAND  CHARACTERISTICS, EYE CHARACTERISTICS, VOCAL CHARACTER-
 ISTICS, AND ANY OTHER CHARACTERISTICS THAT CAN BE  USED  TO  IDENTIFY  A
 PERSON  INCLUDING,  BUT  ARE  NOT  LIMITED TO: FINGERPRINTS; HANDPRINTS;
 RETINA AND IRIS PATTERNS; DNA SEQUENCE; VOICE; GAIT;  AND  FACIAL  GEOM-
 ETRY.
   C.  "FACIAL  RECOGNITION"  SHALL  MEAN  ANY TOOL USING AN AUTOMATED OR
 SEMI-AUTOMATED PROCESS THAT ASSISTS IN UNIQUELY IDENTIFYING OR VERIFYING
 A PERSON BY COMPARING AND ANALYZING PATTERNS BASED ON THE PERSON'S FACE.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD07187-01-1

 S. 893                              2
 
   2. A. EXCEPT AS AUTHORIZED IN PARAGRAPH B OF THIS SUBDIVISION,  PUBLIC
 AND  NONPUBLIC  ELEMENTARY  AND  SECONDARY  SCHOOLS,  INCLUDING  CHARTER
 SCHOOLS, SHALL BE PROHIBITED  FROM  PURCHASING  OR  UTILIZING  BIOMETRIC
 IDENTIFYING TECHNOLOGY FOR ANY PURPOSE, INCLUDING SCHOOL SECURITY, UNTIL
 JULY  FIRST, TWO THOUSAND TWENTY-TWO OR UNTIL THE COMMISSIONER OF EDUCA-
 TION AUTHORIZES SUCH PURCHASE OR UTILIZATION AS PROVIDED IN  SUBDIVISION
 THREE OF THIS SECTION, WHICHEVER OCCURS LATER.
   B.  SCHOOLS  MAY  UTILIZE  BIOMETRIC  IDENTIFYING  TECHNOLOGY  FOR THE
 FOLLOWING PURPOSES: (I) FINGERPRINT IDENTIFICATION OF PROSPECTIVE SCHOOL
 EMPLOYEES WHERE UTILIZED FOR THE PURPOSE OF COMPLIANCE WITH A  PROVISION
 OF THE EDUCATION LAW OR THE REGULATIONS OF THE COMMISSIONER OF EDUCATION
 OR (II) TO EXCLUSIVELY IDENTIFY EMPLOYEES THAT HAVE CONSENTED IN WRITING
 TO  THE  USE  OF SUCH TECHNOLOGY OR IN THE CASE OF EMPLOYEES REPRESENTED
 UNDER ARTICLE FOURTEEN OF THE CIVIL  SERVICE  LAW,  WHERE  THE  EMPLOYEE
 ORGANIZATION  REPRESENTING SUCH EMPLOYEE HAS CONSENTED IN WRITING TO THE
 USE OF SUCH TECHNOLOGY.
   3. A. THE COMMISSIONER OF EDUCATION SHALL NOT AUTHORIZE  THE  PURCHASE
 OR  UTILIZATION  OF  BIOMETRIC IDENTIFYING TECHNOLOGY, INCLUDING BUT NOT
 LIMITED TO FACIAL RECOGNITION TECHNOLOGY,  WITHOUT  THE  DIRECTOR  FIRST
 ISSUING  A  REPORT  PREPARED  IN  CONSULTATION  WITH THE STATE EDUCATION
 DEPARTMENT, MAKING RECOMMENDATIONS AS TO THE CIRCUMSTANCES IN WHICH  THE
 UTILIZATION  OF  SUCH  TECHNOLOGY IS APPROPRIATE IN PUBLIC AND NONPUBLIC
 ELEMENTARY AND SECONDARY SCHOOLS, INCLUDING CHARTER  SCHOOLS,  AND  WHAT
 RESTRICTIONS  AND  GUIDELINES  SHOULD  BE  ENACTED TO PROTECT INDIVIDUAL
 PRIVACY, CIVIL RIGHTS, AND CIVIL LIBERTY INTERESTS.   SUCH REPORT  SHALL
 BE MADE PUBLIC AND PRESENTED TO THE GOVERNOR, THE TEMPORARY PRESIDENT OF
 THE  SENATE, AND THE SPEAKER OF THE ASSEMBLY, AND SHALL CONSIDER, EVALU-
 ATE AND PRESENT RECOMMENDATIONS CONCERNING:
   I. THE PRIVACY IMPLICATIONS OF  COLLECTING,  STORING,  AND/OR  SHARING
 BIOMETRIC  INFORMATION  OF  STUDENTS, TEACHERS, SCHOOL PERSONNEL AND THE
 GENERAL PUBLIC ENTERING A SCHOOL OR SCHOOL GROUNDS;
   II. THE POTENTIAL IMPACT OF THE USE OF BIOMETRIC IDENTIFYING TECHNOLO-
 GY ON STUDENT CIVIL LIBERTIES AND STUDENT CIVIL  RIGHTS,  INCLUDING  THE
 RISKS AND IMPLICATIONS OF THE TECHNOLOGY RESULTING IN FALSE FACIAL IDEN-
 TIFICATIONS,  AND  WHETHER  THE  RISKS  OF  FALSE FACIAL IDENTIFICATIONS
 DIFFERS FOR DIFFERENT SUBGROUPS OF INDIVIDUALS BASED ON  RACE,  NATIONAL
 ORIGIN, GENDER, AGE AND OTHER FACTORS, AND ANY OTHER REASONABLE ACCURACY
 CONCERNS WITH RESPECT TO TECHNOLOGY;
   III.  WHETHER,  AND  UNDER  WHAT CIRCUMSTANCES, SUCH TECHNOLOGY MAY BE
 USED FOR SCHOOL SECURITY AND THE EFFECTIVENESS  OF  SUCH  TECHNOLOGY  TO
 PROTECT STUDENTS AND SCHOOL PERSONNEL;
   IV. WHETHER, AND UNDER WHAT CIRCUMSTANCES AND IN WHAT MANNER, INFORMA-
 TION  COLLECTED MAY BE USED BY SCHOOLS AND SHARED WITH STUDENTS, PARENTS
 OR GUARDIANS, OUTSIDE AGENCIES INCLUDING LAW ENFORCEMENT AGENCIES, INDI-
 VIDUALS, LITIGANTS, THE COURTS, AND ANY OTHER THIRD PARTIES;
   V. THE LENGTH OF TIME BIOMETRIC INFORMATION MAY BE RETAINED AND WHETH-
 ER, AND IN WHAT MANNER, SUCH INFORMATION MAY BE REQUIRED  TO  BE  PERMA-
 NENTLY DESTROYED;
   VI.  THE  RISK  OF AN UNAUTHORIZED BREACH OF BIOMETRIC INFORMATION AND
 APPROPRIATE CONSEQUENCES THEREFOR;
   VII. EXPECTED MAINTENANCE COSTS RESULTING FROM THE STORAGE AND USE  OF
 FACIAL RECOGNITION IMAGES AND OTHER BIOMETRIC INFORMATION, INCLUDING THE
 COST  OF  APPROPRIATELY  SECURING  SENSITIVE  DATA,  PERFORMING REQUIRED
 UPDATES TO PROTECT AGAINST AN UNAUTHORIZED BREACH OF DATA, AND POTENTIAL
 COSTS ASSOCIATED WITH AN UNAUTHORIZED BREACH OF DATA;

 S. 893                              3
 
   VIII. ANALYSIS OF OTHER SCHOOLS AND ORGANIZATIONS, IF ANY,  THAT  HAVE
 IMPLEMENTED  FACIAL RECOGNITION TECHNOLOGY AND OTHER BIOMETRIC IDENTIFY-
 ING TECHNOLOGY PROGRAMS;
   IX. THE APPROPRIATENESS AND POTENTIAL IMPLICATIONS OF USING ANY EXIST-
 ING DATABASES, INCLUDING BUT NOT LIMITED TO, LOCAL LAW ENFORCEMENT DATA-
 BASES, AS PART OF BIOMETRIC IDENTIFYING TECHNOLOGY;
   X.  WHETHER,  AND IN WHAT MANNER SUCH BIOMETRIC IDENTIFYING TECHNOLOGY
 SHOULD BE ASSESSED AND AUDITED, INCLUDING BUT  NOT  LIMITED  TO,  VENDOR
 DATASETS,  ADHERENCE  TO  APPROPRIATE STANDARDS OF ALGORITHMIC FAIRNESS,
 ACCURACY, AND OTHER  PERFORMANCE  METRICS,  INCLUDING  WITH  RESPECT  TO
 SUBGROUPS OF PERSONS BASED ON RACE, NATIONAL ORIGIN, GENDER, AND AGE;
   XI.  WHETHER, AND IN WHAT MANNER, THE USE OF SUCH TECHNOLOGY SHOULD BE
 DISCLOSED BY SIGNS AND THE LIKE IN SUCH SCHOOLS, AS WELL AS COMMUNICATED
 TO PARENTS, GUARDIANS, STUDENTS, AND DISTRICT RESIDENTS; AND
   XII. EXISTING LEGISLATION, INCLUDING BUT NOT LIMITED TO SECTION  TWO-D
 OF  THE  EDUCATION  LAW,  THAT  MAY BE IMPLICATED BY OR IN CONFLICT WITH
 BIOMETRIC TECHNOLOGY TO ENSURE THE MAINTENANCE OF RECORDS RELATED TO THE
 USE OF SUCH TECHNOLOGY, PROTECT THE PRIVACY INTERESTS OF DATA  SUBJECTS,
 AND AVOID ANY BREACHES OF DATA.
   B.  THE  DIRECTOR, IN CONSULTATION WITH THE COMMISSIONER OF EDUCATION,
 SHALL CONSULT  WITH  STAKEHOLDERS  AND  OTHER  INTERESTED  PARTIES  WHEN
 PREPARING  SUCH  REPORT. THE STATE EDUCATION DEPARTMENT, THE DIVISION OF
 CRIMINAL JUSTICE SERVICES, LAW ENFORCEMENT  AUTHORITIES  AND  THE  STATE
 UNIVERSITY OF NEW YORK AND THE CITY UNIVERSITY OF NEW YORK SHALL, TO THE
 EXTENT  PRACTICABLE,  IDENTIFY AND PROVIDE REPRESENTATIVES TO THE OFFICE
 OF INFORMATION TECHNOLOGY, AT THE REQUEST OF THE DIRECTOR, IN  ORDER  TO
 PARTICIPATE IN THE DEVELOPMENT AND DRAFTING OF SUCH REPORT.
   4.  THE  DIRECTOR  SHALL,  VIA  SCHEDULED  PUBLIC  HEARINGS  AND OTHER
 OUTREACH METHODS, SEEK FEEDBACK FROM  TEACHERS,  SCHOOL  ADMINISTRATORS,
 PARENTS,  INDIVIDUALS  WITH EXPERTISE IN SCHOOL SAFETY AND SECURITY, AND
 INDIVIDUALS WITH EXPERTISE IN DATA PRIVACY ISSUES  AND  STUDENT  PRIVACY
 ISSUES,  AND INDIVIDUALS WITH EXPERTISE IN CIVIL RIGHTS AND CIVIL LIBER-
 TIES PRIOR TO MAKING SUCH RECOMMENDATIONS.
   § 3. This act shall take effect on the  same  date  and  in  the  same
 manner  as  a  chapter  of  the  laws of 2020 amending the education law
 relating to the use of biometric identifying technology, as proposed  in
 legislative bills numbers S. 5140-B and A. 6787-D, takes effect.