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This entry was published on 2020-12-28
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SECTION 2-E
Use of biometric identifying technology
Education (EDN) CHAPTER 16, TITLE 1, ARTICLE 1
§ 2-e. Use of biometric identifying technology. 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,
physiological or behavioral characteristics that are attributable to a
person, including but not limited to facial characteristics, fingerprint
characteristics, hand characteristics, eye characteristics, vocal
characteristics, 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 geometry.

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.

2. 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 authorizes such purchase or utilization as provided in
subdivision three of this section, whichever occurs later.

3. a. The commissioner shall not authorize the purchase or utilization
of biometric identifying technology, including but not limited to facial
recognition technology, without first issuing a report prepared in
consultation with the department's chief privacy officer, 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, evaluate 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
technology on student civil liberties and student civil rights,
including the risks and implications of the technology resulting in
false facial identifications, 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,
information collected may be used by schools and shared with students,
parents or guardians, outside agencies including law enforcement
agencies, individuals, litigants, the courts, and any other third
parties;

v. the length of time biometric information may be retained and
whether, and in what manner, such information may be required to be
permanently 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;

viii. analysis of other schools and organizations, if any, that have
implemented facial recognition technology and other biometric
identifying technology programs;

ix. the appropriateness and potential implications of using any
existing databases, including but not limited to, local law enforcement
databases, 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 2-d of
this article, 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 commissioner shall consult with stakeholders and other
interested parties when preparing such report. The office of information
technology, 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 department, at the request of the commissioner,
in order to participate in the development and drafting of such report.

4. The commissioner 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
liberties prior to making such recommendations.