Senate Bill S7135

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   7135
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                               May 18, 2023
                                ___________
 
 Introduced  by  Sens.  HOYLMAN-SIGAL,  KRUEGER -- read twice and ordered
   printed, and when printed to be committed to the Committee on Investi-
   gations and Government Operations
 
 AN ACT to amend the civil rights law, in relation to prohibiting the use
   of biometric surveillance system or biometric surveillance information
   in places of public accommodation
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  Article 4 of the civil rights law is amended to add a new
 section 40-h to read as follows:
   § 40-H. BIOMETRIC SURVEILLANCE. 1.  FOR THE PURPOSES OF THIS  SECTION:
 (A)  "BIOMETRIC INFORMATION" MEANS ANY MEASURABLE PHYSIOLOGICAL, BIOLOG-
 ICAL OR BEHAVIORAL CHARACTERISTICS THAT ARE ATTRIBUTABLE TO AN  INDIVID-
 UAL  PERSON,  INCLUDING  FACIAL  CHARACTERISTICS, FINGERPRINT CHARACTER-
 ISTICS,    HAND    CHARACTERISTICS,    EYE    CHARACTERISTICS,     VOCAL
 CHARACTERISTICS,  AND  ANY  OTHER  PHYSICAL  CHARACTERISTICS THAT CAN BE
 USED, SINGLY OR IN COMBINATION WITH EACH OTHER OR  WITH  OTHER  INFORMA-
 TION,  TO  ESTABLISH INDIVIDUAL IDENTITY. EXAMPLES OF BIOMETRIC INFORMA-
 TION INCLUDE, BUT ARE NOT LIMITED TO, FINGERPRINTS,  HANDPRINTS,  RETINA
 AND IRIS PATTERNS, DNA SEQUENCE, VOICE, GAIT, AND FACIAL GEOMETRY.
   (B)  "BIOMETRIC  SURVEILLANCE" MEANS EITHER OF THE FOLLOWING, ALONE OR
 IN COMBINATION:
   (I) 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
   (II) AN AUTOMATED OR SEMI-AUTOMATED PROCESS THAT GENERATES, OR ASSISTS
 IN  GENERATING,  SURVEILLANCE  INFORMATION  ABOUT AN INDIVIDUAL BASED ON
 THEIR BIOMETRIC INFORMATION.
   (C) "BIOMETRIC SURVEILLANCE SYSTEM" MEANS  ANY  COMPUTER  SOFTWARE  OR
 APPLICATION THAT PERFORMS BIOMETRIC SURVEILLANCE.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD07865-01-3
              

 S. 7135                             2
 
   (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"  DOES  NOT  INCLUDE USING BIOMETRIC INFORMATION TO UNLOCK A
 PERSONAL OR BUSINESS DEVICE, SUCH AS A TELEPHONE OR LAPTOP COMPUTER.
   2.  IT SHALL BE UNLAWFUL FOR ANY PERSON WHO IS THE OWNER,  FRANCHISOR,
 FRANCHISEE,  LESSOR,  LESSEE, PROPRIETOR, MANAGER, SUPERINTENDENT, AGENT
 OR EMPLOYEE OF ANY PLACE OR PROVIDER OF PUBLIC ACCOMMODATION TO USE  ANY
 BIOMETRIC  SURVEILLANCE  SYSTEM OR BIOMETRIC SURVEILLANCE INFORMATION OR
 ENTER INTO ANY AGREEMENT THAT AUTHORIZES ANY THIRD PARTY, ON  BEHALF  OF
 THE  OWNER, FRANCHISOR, FRANCHISEE, LESSOR, LESSEE, PROPRIETOR, MANAGER,
 SUPERINTENDENT, AGENT OR EMPLOYEE OF ANY PLACE  OR  PROVIDER  OF  PUBLIC
 ACCOMMODATION,  TO  USE  ANY  BIOMETRIC SURVEILLANCE SYSTEM OR BIOMETRIC
 SURVEILLANCE INFORMATION.
   3. NOTHING IN THIS SECTION SHALL BE CONSTRUED TO PROHIBIT  THE  OWNER,
 FRANCHISOR, FRANCHISEE, LESSOR, LESSEE, PROPRIETOR, MANAGER, SUPERINTEN-
 DENT, AGENT OR EMPLOYEE OF ANY PLACE OR PROVIDER OF PUBLIC ACCOMMODATION
 FROM  USING  BIOMETRIC  SURVEILLANCE  ON AN ELECTRONIC DEVICE, SUCH AS A
 CELL PHONE OR TABLET FOR THE SOLE PURPOSE OF USER AUTHENTICATION.
   4. NO PLACE OR PROVIDER OF PUBLIC ACCOMMODATION MAY COLLECT,  CAPTURE,
 PURCHASE,  RECEIVE  THROUGH TRADE, OR OTHERWISE OBTAIN A PERSON'S BIOME-
 TRIC INFORMATION, UNLESS IT FIRST:
   (A) INFORMS THE SUBJECT OR THE SUBJECT'S LEGALLY AUTHORIZED  REPRESEN-
 TATIVE  IN  WRITING  THAT  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
 BIOMETRIC INFORMATION IS BEING COLLECTED, STORED, AND USED; AND
   (C) RECEIVES A WRITTEN RELEASE EXECUTED BY THE SUBJECT OF  THE  BIOME-
 TRIC INFORMATION OR THE SUBJECT'S LEGALLY AUTHORIZED REPRESENTATIVE; AND
 THE SUBJECT MUST PROVIDE THEIR CONSENT KNOWINGLY AND VOLUNTARILY THROUGH
 THE  WRITTEN  RELEASE, AND GIVING CONSENT MAY NOT BE MADE A CONDITION OF
 PROVISION OF A SERVICE BY A PROVIDER OF A PUBLIC ACCOMMODATION OR  ENTRY
 INTO A PLACE OF PUBLIC ACCOMMODATION.
   5.  AN  OWNER,  FRANCHISOR,  FRANCHISEE,  LESSOR,  LESSEE, PROPRIETOR,
 MANAGER, SUPERINTENDENT, AGENT OR EMPLOYEE OF ANY PLACE OR  PROVIDER  OF
 PUBLIC ACCOMMODATION IN POSSESSION OF BIOMETRIC INFORMATION SHALL:
   (A)  STORE, TRANSMIT, AND PROTECT FROM DISCLOSURE ALL BIOMETRIC INFOR-
 MATION USING THE REASONABLE STANDARD OF CARE WITHIN THE INDUSTRY OF  THE
 OWNER,  FRANCHISOR,  FRANCHISEE,  LESSOR,  LESSEE,  PROPRIETOR, MANAGER,
 SUPERINTENDENT, AGENT OR EMPLOYEE OF ANY PLACE  OR  PROVIDER  OF  PUBLIC
 ACCOMMODATION; AND
   (B)  STORE, TRANSMIT, AND PROTECT FROM DISCLOSURE ALL BIOMETRIC INFOR-
 MATION IN A MANNER THAT IS THE SAME  AS  OR  MORE  PROTECTIVE  THAN  THE
 MANNER  IN  WHICH  THE  OWNER,  FRANCHISOR,  FRANCHISEE, LESSOR, LESSEE,
 PROPRIETOR, MANAGER, SUPERINTENDENT, AGENT OR EMPLOYEE OF ANY  PLACE  OR
 PROVIDER  OF  PUBLIC ACCOMMODATION STORES, TRANSMITS, AND PROTECTS OTHER
 CONFIDENTIAL AND SENSITIVE INFORMATION.
   6.  (A) ANY PERSON WHO OR ANY AGENCY, BUREAU, CORPORATION  OR  ASSOCI-
 ATION  WHICH  SHALL VIOLATE ANY OF THE PROVISIONS OF THIS SECTION OR WHO
 OR WHICH SHALL AID OR INCITE THE VIOLATION OF  ANY  OF  SAID  PROVISIONS
 S. 7135                             3
 
 SHALL FOR EACH AND EVERY VIOLATION THEREOF BE LIABLE TO A PENALTY OF NOT
 LESS  THAN  THE GREATER OF ONE THOUSAND DOLLARS OF ACTUAL DAMAGES, TO BE
 RECOVERED BY THE PERSON AGGRIEVED THEREBY OR BY  ANY  RESIDENT  OF  THIS
 STATE,  TO  WHOM  SUCH PERSON SHALL ASSIGN THEIR CAUSE OF ACTION, IN ANY
 COURT OF COMPETENT JURISDICTION IN THE COUNTY IN WHICH THE PLAINTIFF  OR
 THE DEFENDANT SHALL RESIDE.
   (B)  IN  ANY  ACTION BROUGHT UNDER THIS SECTION, THE COURT SHALL AWARD
 REASONABLE ATTORNEYS' FEES TO A PREVAILING PLAINTIFF.
   (C) UPON MOTION FROM A CRIMINAL DEFENDANT, A COURT  SHALL  ORDER  THAT
 EVIDENCE BE SUPPRESSED OR EXCLUDED IF THE COURT FINDS THAT SUCH EVIDENCE
 WAS OBTAINED IN VIOLATION OF THIS SECTION.
   (D)  NOTHING IN THIS SUBDIVISION SHALL BE CONSTRUED TO LIMIT ANY INDI-
 VIDUAL'S RIGHTS UNDER STATE OR FEDERAL LAW.
   7. SEVERABILITY. IF ANY PROVISION OF THIS SECTION SHALL BE HELD TO  BE
 INVALID  BY A COURT OF COMPETENT JURISDICTION, THEN SUCH PROVISION SHALL
 BE CONSIDERED SEPARATELY AND APART FROM THE REMAINING PROVISIONS,  WHICH
 SHALL REMAIN IN FULL FORCE AND EFFECT.
   § 2. This law shall take effect immediately.