Bill Text: NY A05492 | 2021-2022 | General Assembly | Introduced
Bill Title: 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.
Spectrum: Partisan Bill (Democrat 5-0)
Status: (Introduced - Dead) 2022-01-05 - referred to governmental operations [A05492 Detail]
Download: New_York-2021-A05492-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 5492 2021-2022 Regular Sessions IN ASSEMBLY February 19, 2021 ___________ Introduced by M. of A. GLICK -- read once and referred to the Committee on Governmental Operations 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: 1 Section 1. Legislative intent. The legislature finds and declares the 2 following: 3 (a) The use of biometric surveillance technology has been largely 4 unregulated by all levels of government in the United States to date, 5 allowing its unfettered use by private entities, government, and law 6 enforcement with little to no requirements or restrictions relating to 7 use, data retention, privacy protections, and use of information derived 8 from such systems in law enforcement investigations. In New York, this 9 lack of regulation and oversight has led to concerning practices by law 10 enforcement, such as including sealed mugshots and arrest photos of 11 juveniles in facial recognition databases and running photos of celebri- 12 ty lookalikes through facial recognition software to attempt to identify 13 potential suspects. 14 (b) Studies of currently available biometric surveillance technology 15 demonstrate that such technology's consistency and accuracy can vary 16 widely based on age, gender, sex, race, and other factors, and has been 17 found to be particularly inaccurate when used on women, young people, 18 and people of color. 19 (c) These accuracy concerns are particularly troubling in the context 20 of this technology's ongoing and increasing use by law enforcement. New 21 York's law enforcement should not rely on technology that has demon- 22 strated accuracy issues, as such practice risks the wrongful targeting, EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD02388-01-1A. 5492 2 1 interrogation, detention, or even conviction of an innocent person based 2 on erroneous data. 3 (d) The largest U.S. supplier of police body cameras has publicly 4 stated that this technology "is not currently reliable enough to 5 ethically justify its use," and other major companies working on this 6 technology have chosen not to offer it for general use until concerns 7 about the technology's accuracy are resolved. 8 (e) In addition to accuracy concerns, the continuous use of this tech- 9 nology for broad, untargeted surveillance purposes constitutes an unac- 10 ceptable mass violation of privacy and could chill New Yorkers' right to 11 free speech and freedom of assembly. 12 (f) In order to protect the personal data, civil rights, civil liber- 13 ties, and due process rights of all New Yorkers, the use of this tech- 14 nology by law enforcement should not currently be permitted, and more 15 study and research should be conducted into the impacts of this technol- 16 ogy before determining whether it should be authorized for use, and 17 under what circumstances such use should be permitted. 18 § 2. The executive law is amended by adding a new section 837-w to 19 read as follows: 20 § 837-w. Use of biometric surveillance systems prohibited. 1. Defi- 21 nitions. For the purposes of this section, the following terms shall 22 have the following meanings: 23 (a) "Biometric information" means any measurable physiological, 24 biological or behavioral characteristics that are attributable to an 25 individual person, including facial characteristics, fingerprint charac- 26 teristics, hand characteristics, eye characteristics, vocal character- 27 istics, and any other physical characteristics that can be used, singly 28 or in combination with each other or with other information, to estab- 29 lish individual identity. Examples of biometric information include, 30 but are not limited to, fingerprints, handprints, retina and iris 31 patterns, DNA sequence, voice, gait, and facial geometry. 32 (b)(i) "Biometric surveillance" means either of the following, alone 33 or in combination: 34 (1) An automated or semi-automated process by which a person is iden- 35 tified or attempted to be identified based on their biometric informa- 36 tion, including identification of known or unknown individuals or 37 groups; and/or 38 (2) An automated or semi-automated process that generates, or assists 39 in generating, surveillance information about an individual based on 40 their biometric information. 41 (ii) "Biometric surveillance" shall not include the use of an auto- 42 mated or semi-automated process for the purposes of: 43 (1) redacting a recording for release or disclosure outside a police 44 agency to protect the privacy of a subject depicted in the recording, if 45 the process does not generate or result in the retention of any biome- 46 tric information or surveillance information; 47 (2) the state DNA identification index in accordance with the 48 provisions of section nine hundred ninety-five-c of this chapter; or 49 (3) the taking, submission, and processing of fingerprints for the 50 state identification bureau, provided that such taking, submission and 51 processing is explicitly authorized by law. 52 (c) "Biometric surveillance system" means any computer software or 53 application that performs biometric surveillance, but does not include 54 the state DNA identification index or the fingerprint identification 55 portion of the state automated biometric identification system.A. 5492 3 1 (d) "Police agency", "police officer" and "peace officer" shall have 2 the same meanings as defined under section eight hundred thirty-five of 3 this article. 4 (e) "Surveillance information" means either of the following, alone or 5 in combination: 6 (i) Any information about a known or unknown individual, including but 7 not limited to, a person's name, date of birth, gender, aggregated 8 location data, or criminal background; and/or 9 (ii) Any information derived from biometric information, including but 10 not limited to, assessments about an individual's sentiment, state of 11 mind or level of dangerousness. 12 (f) "Use" means either of the following, alone or in combination: 13 (i) The direct use of a biometric surveillance system by a police 14 agency, police officer or peace officer; and/or 15 (ii) A request by a police officer or peace officer that a police 16 agency or other third party use a biometric surveillance system on 17 behalf of the requesting entity. 18 2. No police agency, police officer or peace officer shall acquire, 19 possess, access, install, activate or use any biometric surveillance 20 system, or any biometric information or surveillance information derived 21 from the use of a biometric surveillance system by any other entity, 22 while in the course of their job duties or with regard to any informa- 23 tion obtained, processed, or accessed in the course of those duties. 24 3. In addition to any other sanctions, penalties or remedies provided 25 by law, a person may bring an action for equitable or declaratory relief 26 in a court of competent jurisdiction against a police agency, police 27 officer or peace officer that violates this section. 28 4. This section does not preclude a police agency, police officer or 29 peace officer from: 30 (a) lawfully using a mobile fingerprint scanning device during a 31 lawful detention to identify a person who does not have proof of iden- 32 tification if a police officer or peace officer has reasonable cause to 33 arrest such person or to issue to and serve upon such person an appear- 34 ance ticket, provided that any biometric or surveillance information 35 retained through the use of such device may be used solely for the 36 purposes permitted in this paragraph or other purposes explicitly 37 authorized by law; 38 (b) accessing DNA comparisons between forensic evidence and designated 39 offenders, as defined in subdivision seven of section nine hundred nine- 40 ty-five of this chapter, through the state DNA identification index 41 pursuant to section nine hundred ninety-five-c of this chapter; 42 (c) accessing fingerprint comparisons using the statewide automated 43 biometric identification system for the purpose of routine booking or 44 crime scene comparisons; or 45 (d) using any lawfully installed security system that processes biome- 46 tric information solely for the purpose of verifying the identity of 47 members, officers, employees, agents, or other affiliated staff of the 48 police agency in order to determine whether such persons are permitted 49 to access information, goods, materials, areas, or other possessions or 50 property belonging to or under the custody of the police agency. 51 § 3. The executive law is amended by adding a new section 235 to read 52 as follows: 53 § 235. Use of biometric surveillance systems prohibited. 1. Defi- 54 nitions. For the purposes of this section, the following terms shall 55 have the following meanings:A. 5492 4 1 (a) "Biometric information" means any measurable physiological, 2 biological or behavioral characteristics that are attributable to an 3 individual person, including facial characteristics, fingerprint charac- 4 teristics, hand characteristics, eye characteristics, vocal character- 5 istics, and any other physical characteristics that can be used, singly 6 or in combination with each other or with other information, to estab- 7 lish individual identity. Examples of biometric information include, 8 but are not limited to, fingerprints, handprints, retina and iris 9 patterns, DNA sequence, voice, gait, and facial geometry. 10 (b) (i) "Biometric surveillance" means either of the following, alone 11 or in combination: 12 (1) An automated or semi-automated process by which a person is iden- 13 tified or attempted to be identified based on their biometric informa- 14 tion, including identification of known or unknown individuals or 15 groups; and/or 16 (2) An automated or semi-automated process that generates, or assists 17 in generating, surveillance information about an individual based on 18 their biometric information. 19 (ii) "Biometric surveillance" shall not include the use of an auto- 20 mated or semi-automated process for the purposes of: 21 (1) redacting a recording for release or disclosure outside the state 22 police to protect the privacy of a subject depicted in the recording, if 23 the process does not generate or result in the retention of any biome- 24 tric information or surveillance information; 25 (2) the state DNA identification index in accordance with the 26 provisions of section nine hundred ninety-five-c of this chapter; or 27 (3) the taking, submission, and processing of fingerprints for the 28 state identification bureau, provided that such taking, submission and 29 processing is explicitly authorized by law. 30 (c) "Biometric surveillance system" means any computer software or 31 application that performs biometric surveillance. 32 (d) "Surveillance information" means either of the following, alone or 33 in combination: 34 (i) Any information about a known or unknown individual, including but 35 not limited to, a person's name, date of birth, gender, aggregated 36 location data, or criminal background; and/or 37 (ii) Any information derived from biometric information, including but 38 not limited to, assessments about an individual's sentiment, state of 39 mind or level of dangerousness. 40 (e) "Use" means either of the following, alone or in combination: 41 (i) The direct use of a biometric surveillance system by a member of 42 the state police; and/or 43 (ii) A request by a member of the state police that a police agency or 44 other third party use a biometric surveillance system on behalf of the 45 requesting entity. 46 2. No member of the state police shall acquire, possess, access, 47 install, activate or use any biometric surveillance system, or any biom- 48 etric information or surveillance information derived from the use of a 49 biometric surveillance system by any other entity, while in the course 50 of their job duties or with regard to any information obtained, proc- 51 essed, or accessed in the course of those duties. 52 3. In addition to any other sanctions, penalties or remedies provided 53 by law, a person may bring an action for equitable or declaratory relief 54 in a court of competent jurisdiction against a member of the state 55 police that violates this section. 56 4. This section does not preclude a member of the state police from:A. 5492 5 1 (a) lawfully using a mobile fingerprint scanning device during a 2 lawful detention to identify a person who does not have proof of iden- 3 tification if a member of the state police has reasonable cause to 4 arrest such person or to issue to and serve upon such person an appear- 5 ance ticket, provided that any biometric or surveillance information 6 retained through the use of such device may be used solely for the 7 purposes permitted in this paragraph or other purposes explicitly 8 authorized by law; 9 (b) accessing DNA comparisons between forensic evidence and designated 10 offenders, as defined in subdivision seven of section nine hundred nine- 11 ty-five of this chapter, through the state DNA identification index 12 pursuant to section nine hundred ninety-five-c of this chapter; 13 (c) accessing fingerprint comparisons using the statewide automated 14 biometric identification system for the purpose of routine booking or 15 crime scene comparisons; or 16 (d) using any lawfully installed security system that processes biome- 17 tric information solely for the purpose of verifying the identity of 18 members, officers, employees, agents, or other affiliated staff of the 19 state police in order to determine whether such persons are permitted to 20 access information, goods, materials, areas, or other possessions or 21 property belonging to or under the custody of the state police. 22 § 4. Biometric surveillance regulation task force. 1. (a) There is 23 hereby established the task force on the regulation of biometric 24 surveillance, which shall consist of twelve members as follows: 25 (a) the commissioner of the division of criminal justice services or 26 his or her designee; 27 (b) the superintendent of state police or his or her designee; 28 (c) the commissioner of the New York city police department or his or 29 her designee; and 30 (d) three members appointed by the governor, two members appointed by 31 the temporary president of the senate, two members appointed by the 32 speaker of the assembly, one member appointed by the minority leader of 33 the senate, and one member appointed by the minority leader of the 34 assembly, each of which shall have expertise and experience related to 35 at least one of the following fields, disciplines, or areas: 36 (i) data privacy and data security; 37 (ii) civil rights, civil liberties, and due process and procedural 38 rights; 39 (iii) the use and function of both existing and emerging biometric 40 surveillance technology; 41 (iv) legal representation of low-income individuals and/or tenants; or 42 (v) criminal defense. 43 (b) The chairperson of the task force shall be one of the governor's 44 appointees, whom the governor shall so designate. 45 (c) The task force shall meet as often as is necessary, but no less 46 than three times per year, and at the call of the chairperson. Meetings 47 may be held via teleconference. All members shall be provided with writ- 48 ten notice reasonably in advance of each meeting with date, time and 49 location of such meeting. 50 (d) Any vacancies on the task force shall be filled in the manner 51 provided for in the initial appointment. 52 (e) Members of the task force shall receive no compensation for their 53 services but shall be reimbursed for their actual expenses incurred in 54 the performance of their duties in the work of the task force. 55 (f) The task force is authorized to hold public hearings and meetings 56 and to consult with any relevant stakeholders it deems appropriate orA. 5492 6 1 necessary to seek assistance, data, or other information that will 2 enable the task force to carry out its powers and duties. 3 (g) The division of criminal justice services shall provide the task 4 force with such facilities, assistance and data as will enable the task 5 force to carry out its powers and duties. Additionally, all other agen- 6 cies of the state or subdivisions thereof may, at the request of the 7 chairperson of the task force, provide the task force with such facili- 8 ties, assistance, and data as will enable the task force to carry out 9 its powers and duties. 10 2. The task force shall: 11 (a) Examine the current and proposed use of biometric surveillance 12 systems, as such term is defined pursuant to section 837-w of the execu- 13 tive law, by governments and/or law enforcement, both in the United 14 States and abroad; 15 (b) Examine current and proposed laws, rules, regulations, programs, 16 and policies relating to the use of biometric surveillance systems; 17 (c) Examine currently available biometric surveillance systems or 18 similar technology, and evaluate their effectiveness, efficacy, and 19 accuracy, provided that such evaluation shall include the use of repre- 20 sentative datasets according to targeted populations, and disaggregated 21 testing for demographic subgroups by age, gender identity, and race; 22 (d) Evaluate the potential benefits and harms of the use of biometric 23 surveillance systems, taking into account and analyzing the impact of 24 the use of such systems on minorities, women, young people, seniors, 25 lesbian, gay, bisexual, transgender, and gender-nonconforming individ- 26 uals, and individuals with disabilities; 27 (e) Evaluate whether law enforcement should be permitted to use biome- 28 tric surveillance systems, and if it is the judgment of the task force 29 that such use should be permitted, the task force shall propose a 30 comprehensive framework of recommendations for legislation, regulations 31 and standards regarding the use of such systems by law enforcement, 32 including, but not limited to: 33 (i) permissible uses and purposes for use of biometric surveillance 34 systems by law enforcement; 35 (ii) prohibited uses and purposes for use of biometric surveillance 36 systems by law enforcement; 37 (iii) minimum standards for accuracy that biometric surveillance 38 systems must achieve in order to be authorized for use by law enforce- 39 ment, and auditing requirements to ensure compliance with those stand- 40 ards; 41 (iv) standards for use, management, and protection of information 42 derived from the use of biometric surveillance systems by law enforce- 43 ment, including, but not limited to data retention, sharing, access, and 44 audit trails; 45 (v) rigorous protections for due process, privacy, free speech and 46 association, and racial, gender, and religious equity; 47 (vi) training requirements for law enforcement personnel authorized to 48 use biometric surveillance systems; 49 (vii) procedures to address instances in which a person is wrongfully 50 targeted, arrested or interrogated based on inaccurate information 51 derived from the use of a biometric surveillance system; and 52 (viii) disclosure requirements for broad public transparency as well 53 as discovery procedures. 54 3. (a) No sooner than January 1, 2025, and no later than January 1, 55 2026, the task force shall transmit a report to the governor, the tempo- 56 rary president of the senate, the speaker of the assembly, the minorityA. 5492 7 1 leader of the senate, and the minority leader of the assembly detailing 2 its findings and recommendations pursuant to subdivision two of this 3 section. 4 (b) No later than ten days after the task force transmits such report 5 to the governor, the temporary president of the senate, the speaker of 6 the assembly, the minority leader of the senate, and the minority leader 7 of the assembly, the division of criminal justice services shall make 8 such report available on its website. 9 § 5. This act shall take effect immediately, provided that section 10 four of this act shall expire and be deemed repealed 60 days after tran- 11 smission of the report of the findings and recommendations of the task 12 force to the governor, the temporary president of the senate, the speak- 13 er of the assembly, the minority leader of the senate, and the minority 14 leader of the assembly, as provided in paragraph (a) of subdivision 3 of 15 section four of this act. Provided, however, that the commissioner of 16 the department of criminal justice services shall notify the legislative 17 bill drafting commission upon the transmission of the report of the 18 findings of the task force, as provided in paragraph (a) of subdivision 19 3 of section four of this act, in order that the commission may maintain 20 an accurate and timely effective data base of the official text of the 21 laws of the state of New York in furtherance of effectuating the 22 provisions of section 44 of the legislative law and section 70-b of the 23 public officers law.
