Bill Text: NY A09767 | 2019-2020 | General Assembly | Introduced
Bill Title: Prohibits the use of biometric surveillance technology by law enforcement; establishes the biometric surveillance regulation task force; and provides for the expiration and repeal of certain provisions.
Spectrum: Partisan Bill (Democrat 3-0)
Status: (Introduced - Dead) 2020-02-11 - referred to governmental operations [A09767 Detail]
Download: New_York-2019-A09767-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 9767 IN ASSEMBLY February 11, 2020 ___________ 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, 23 interrogation, detention, or even conviction of an innocent person based 24 on erroneous data. 25 (d) The largest U.S. supplier of police body cameras has publicly 26 stated that this technology "is not currently reliable enough to EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD14547-04-0A. 9767 2 1 ethically justify its use," and other major companies working on this 2 technology have chosen not to offer it for general use until concerns 3 about the technology's accuracy are resolved. 4 (e) In addition to accuracy concerns, the continuous use of this tech- 5 nology for broad, untargeted surveillance purposes constitutes an unac- 6 ceptable mass violation of privacy and could chill New Yorkers' right to 7 free speech and freedom of assembly. 8 (f) In order to protect the personal data, civil rights, civil liber- 9 ties, and due process rights of all New Yorkers, the use of this tech- 10 nology by law enforcement should not currently be permitted, and more 11 study and research should be conducted into the impacts of this technol- 12 ogy before determining whether it should be authorized for use, and 13 under what circumstances such use should be permitted. 14 § 2. The executive law is amended by adding a new section 837-u to 15 read as follows: 16 § 837-u. Use of biometric surveillance systems prohibited. 1. Defi- 17 nitions. For the purposes of this section, the following terms shall 18 have the following meanings: 19 (a) "Biometric information" means any measurable physiological, 20 biological or behavioral characteristics that are attributable to an 21 individual person, including facial characteristics, fingerprint charac- 22 teristics, hand characteristics, eye characteristics, vocal character- 23 istics, and any other physical characteristics that can be used, singly 24 or in combination with each other or with other information, to estab- 25 lish individual identity. Examples of biometric information include, 26 but are not limited to, fingerprints, handprints, retina and iris 27 patterns, DNA sequence, voice, gait, and facial geometry. 28 (b)(i) "Biometric surveillance" means either of the following, alone 29 or in combination: 30 (1) An automated or semi-automated process by which a person is iden- 31 tified or attempted to be identified based on their biometric informa- 32 tion, including identification of known or unknown individuals or 33 groups; and/or 34 (2) An automated or semi-automated process that generates, or assists 35 in generating, surveillance information about an individual based on 36 their biometric information. 37 (ii) "Biometric surveillance" shall not include the use of an auto- 38 mated or semi-automated process for the purposes of: 39 (1) redacting a recording for release or disclosure outside a police 40 agency to protect the privacy of a subject depicted in the recording, if 41 the process does not generate or result in the retention of any biome- 42 tric information or surveillance information; 43 (2) the state DNA identification index in accordance with the 44 provisions of section nine hundred ninety-five-c of this chapter; or 45 (3) the taking, submission, and processing of fingerprints for the 46 state identification bureau, provided that such taking, submission and 47 processing is explicitly authorized by law. 48 (c) "Biometric surveillance system" means any computer software or 49 application that performs biometric surveillance, but does not include 50 the state DNA identification index or the fingerprint identification 51 portion of the state automated biometric identification system. 52 (d) "Police agency", "police officer" and "peace officer" shall have 53 the same meanings as defined under section eight hundred thirty-five of 54 this article. 55 (e) "Surveillance information" means either of the following, alone or 56 in combination:A. 9767 3 1 (i) Any information about a known or unknown individual, including but 2 not limited to, a person's name, date of birth, gender, aggregated 3 location data, or criminal background; and/or 4 (ii) Any information derived from biometric information, including but 5 not limited to, assessments about an individual's sentiment, state of 6 mind or level of dangerousness. 7 (f) "Use" means either of the following, alone or in combination: 8 (i) The direct use of a biometric surveillance system by a police 9 agency, police officer or peace officer; and/or 10 (ii) A request by a police officer or peace officer that a police 11 agency or other third party use a biometric surveillance system on 12 behalf of the requesting entity. 13 2. No police agency, police officer or peace officer shall acquire, 14 possess, access, install, activate or use any biometric surveillance 15 system, or any biometric information or surveillance information derived 16 from the use of a biometric surveillance system by any other entity, 17 while in the course of their job duties or with regard to any informa- 18 tion obtained, processed, or accessed in the course of those duties. 19 3. In addition to any other sanctions, penalties or remedies provided 20 by law, a person may bring an action for equitable or declaratory relief 21 in a court of competent jurisdiction against a police agency, police 22 officer or peace officer that violates this section. 23 4. This section does not preclude a police agency, police officer or 24 peace officer from: 25 (a) lawfully using a mobile fingerprint scanning device during a 26 lawful detention to identify a person who does not have proof of iden- 27 tification if a police officer or peace officer has reasonable cause to 28 arrest such person or to issue to and serve upon such person an appear- 29 ance ticket, provided that any biometric or surveillance information 30 retained through the use of such device may be used solely for the 31 purposes permitted in this paragraph or other purposes explicitly 32 authorized by law; 33 (b) accessing DNA comparisons between forensic evidence and designated 34 offenders, as defined in subdivision seven of section nine hundred nine- 35 ty-five of this chapter, through the state DNA identification index 36 pursuant to section nine hundred ninety-five-c of this chapter; 37 (c) accessing fingerprint comparisons using the statewide automated 38 biometric identification system for the purpose of routine booking or 39 crime scene comparisons; or 40 (d) using any lawfully installed security system that processes biome- 41 tric information solely for the purpose of verifying the identity of 42 members, officers, employees, agents, or other affiliated staff of the 43 police agency in order to determine whether such persons are permitted 44 to access information, goods, materials, areas, or other possessions or 45 property belonging to or under the custody of the police agency. 46 § 3. The executive law is amended by adding a new section 234 to read 47 as follows: 48 § 234. Use of biometric surveillance systems prohibited. 1. Defi- 49 nitions. For the purposes of this section, the following terms shall 50 have the following meanings: 51 (a) "Biometric information" means any measurable physiological, 52 biological or behavioral characteristics that are attributable to an 53 individual person, including facial characteristics, fingerprint charac- 54 teristics, hand characteristics, eye characteristics, vocal character- 55 istics, and any other physical characteristics that can be used, singly 56 or in combination with each other or with other information, to estab-A. 9767 4 1 lish individual identity. Examples of biometric information include, 2 but are not limited to, fingerprints, handprints, retina and iris 3 patterns, DNA sequence, voice, gait, and facial geometry. 4 (b) (i) "Biometric surveillance" means either of the following, alone 5 or in combination: 6 (1) An automated or semi-automated process by which a person is iden- 7 tified or attempted to be identified based on their biometric informa- 8 tion, including identification of known or unknown individuals or 9 groups; and/or 10 (2) An automated or semi-automated process that generates, or assists 11 in generating, surveillance information about an individual based on 12 their biometric information. 13 (ii) "Biometric surveillance" shall not include the use of an auto- 14 mated or semi-automated process for the purposes of: 15 (1) redacting a recording for release or disclosure outside the state 16 police to protect the privacy of a subject depicted in the recording, if 17 the process does not generate or result in the retention of any biome- 18 tric information or surveillance information; 19 (2) the state DNA identification index in accordance with the 20 provisions of section nine hundred ninety-five-c of this chapter; or 21 (3) the taking, submission, and processing of fingerprints for the 22 state identification bureau, provided that such taking, submission and 23 processing is explicitly authorized by law. 24 (c) "Biometric surveillance system" means any computer software or 25 application that performs biometric surveillance. 26 (d) "Surveillance information" means either of the following, alone or 27 in combination: 28 (i) Any information about a known or unknown individual, including but 29 not limited to, a person's name, date of birth, gender, aggregated 30 location data, or criminal background; and/or 31 (ii) Any information derived from biometric information, including but 32 not limited to, assessments about an individual's sentiment, state of 33 mind or level of dangerousness. 34 (e) "Use" means either of the following, alone or in combination: 35 (i) The direct use of a biometric surveillance system by a member of 36 the state police; and/or 37 (ii) A request by a member of the state police that a police agency or 38 other third party use a biometric surveillance system on behalf of the 39 requesting entity. 40 2. No member of the state police shall acquire, possess, access, 41 install, activate or use any biometric surveillance system, or any biom- 42 etric information or surveillance information derived from the use of a 43 biometric surveillance system by any other entity, while in the course 44 of their job duties or with regard to any information obtained, proc- 45 essed, or accessed in the course of those duties. 46 3. In addition to any other sanctions, penalties or remedies provided 47 by law, a person may bring an action for equitable or declaratory relief 48 in a court of competent jurisdiction against a member of the state 49 police that violates this section. 50 4. This section does not preclude a member of the state police from: 51 (a) lawfully using a mobile fingerprint scanning device during a 52 lawful detention to identify a person who does not have proof of iden- 53 tification if a member of the state police has reasonable cause to 54 arrest such person or to issue to and serve upon such person an appear- 55 ance ticket, provided that any biometric or surveillance information 56 retained through the use of such device may be used solely for theA. 9767 5 1 purposes permitted in this paragraph or other purposes explicitly 2 authorized by law; 3 (b) accessing DNA comparisons between forensic evidence and designated 4 offenders, as defined in subdivision seven of section nine hundred nine- 5 ty-five of this chapter, through the state DNA identification index 6 pursuant to section nine hundred ninety-five-c of this chapter; 7 (c) accessing fingerprint comparisons using the statewide automated 8 biometric identification system for the purpose of routine booking or 9 crime scene comparisons; or 10 (d) using any lawfully installed security system that processes biome- 11 tric information solely for the purpose of verifying the identity of 12 members, officers, employees, agents, or other affiliated staff of the 13 state police in order to determine whether such persons are permitted to 14 access information, goods, materials, areas, or other possessions or 15 property belonging to or under the custody of the state police. 16 § 4. Biometric surveillance regulation task force. 1. (a) There is 17 hereby established the task force on the regulation of biometric 18 surveillance, which shall consist of twelve members as follows: 19 (a) the commissioner of the division of criminal justice services or 20 his or her designee; 21 (b) the superintendent of state police or his or her designee; 22 (c) the commissioner of the New York city police department or his or 23 her designee; and 24 (d) three members appointed by the governor, two members appointed by 25 the temporary president of the senate, two members appointed by the 26 speaker of the assembly, one member appointed by the minority leader of 27 the senate, and one member appointed by the minority leader of the 28 assembly, each of which shall have expertise and experience related to 29 at least one of the following fields, disciplines, or areas: 30 (i) data privacy and data security; 31 (ii) civil rights, civil liberties, and due process and procedural 32 rights; 33 (iii) the use and function of both existing and emerging biometric 34 surveillance technology; 35 (iv) legal representation of low-income individuals and/or tenants; or 36 (v) criminal defense. 37 (b) The chairperson of the task force shall be one of the governor's 38 appointees, whom the governor shall so designate. 39 (c) The task force shall meet as often as is necessary, but no less 40 than three times per year, and at the call of the chairperson. Meetings 41 may be held via teleconference. All members shall be provided with writ- 42 ten notice reasonably in advance of each meeting with date, time and 43 location of such meeting. 44 (d) Any vacancies on the task force shall be filled in the manner 45 provided for in the initial appointment. 46 (e) Members of the task force shall receive no compensation for their 47 services but shall be reimbursed for their actual expenses incurred in 48 the performance of their duties in the work of the task force. 49 (f) The task force is authorized to hold public hearings and meetings 50 and to consult with any relevant stakeholders it deems appropriate or 51 necessary to seek assistance, data, or other information that will 52 enable the task force to carry out its powers and duties. 53 (g) The division of criminal justice services shall provide the task 54 force with such facilities, assistance and data as will enable the task 55 force to carry out its powers and duties. Additionally, all other agen- 56 cies of the state or subdivisions thereof may, at the request of theA. 9767 6 1 chairperson of the task force, provide the task force with such facili- 2 ties, assistance, and data as will enable the task force to carry out 3 its powers and duties. 4 2. The task force shall: 5 (a) Examine the current and proposed use of biometric surveillance 6 systems, as such term is defined pursuant to section 837-u of the execu- 7 tive law, by governments and/or law enforcement, both in the United 8 States and abroad; 9 (b) Examine current and proposed laws, rules, regulations, programs, 10 and policies relating to the use of biometric surveillance systems; 11 (c) Examine currently available biometric surveillance systems or 12 similar technology, and evaluate their effectiveness, efficacy, and 13 accuracy, provided that such evaluation shall include the use of repre- 14 sentative datasets according to targeted populations, and disaggregated 15 testing for demographic subgroups by age, gender identity, and race; 16 (d) Evaluate the potential benefits and harms of the use of biometric 17 surveillance systems, taking into account and analyzing the impact of 18 the use of such systems on minorities, women, young people, seniors, 19 lesbian, gay, bisexual, transgender, and gender-nonconforming individ- 20 uals, and individuals with disabilities; 21 (e) Evaluate whether law enforcement should be permitted to use biome- 22 tric surveillance systems, and if it is the judgment of the task force 23 that such use should be permitted, the task force shall propose a 24 comprehensive framework of recommendations for legislation, regulations 25 and standards regarding the use of such systems by law enforcement, 26 including, but not limited to: 27 (i) permissible uses and purposes for use of biometric surveillance 28 systems by law enforcement; 29 (ii) prohibited uses and purposes for use of biometric surveillance 30 systems by law enforcement; 31 (iii) minimum standards for accuracy that biometric surveillance 32 systems must achieve in order to be authorized for use by law enforce- 33 ment, and auditing requirements to ensure compliance with those stand- 34 ards; 35 (iv) standards for use, management, and protection of information 36 derived from the use of biometric surveillance systems by law enforce- 37 ment, including, but not limited to data retention, sharing, access, and 38 audit trails; 39 (v) rigorous protections for due process, privacy, free speech and 40 association, and racial, gender, and religious equity; 41 (vi) training requirements for law enforcement personnel authorized to 42 use biometric surveillance systems; 43 (vii) procedures to address instances in which a person is wrongfully 44 targeted, arrested or interrogated based on inaccurate information 45 derived from the use of a biometric surveillance system; and 46 (viii) disclosure requirements for broad public transparency as well 47 as discovery procedures. 48 3. (a) No sooner than January 1, 2024, and no later than January 1, 49 2025, the task force shall transmit a report to the governor, the tempo- 50 rary president of the senate, the speaker of the assembly, the minority 51 leader of the senate, and the minority leader of the assembly detailing 52 its findings and recommendations pursuant to subdivision two of this 53 section. 54 (b) No later than ten days after the task force transmits such report 55 to the governor, the temporary president of the senate, the speaker of 56 the assembly, the minority leader of the senate, and the minority leaderA. 9767 7 1 of the assembly, the division of criminal justice services shall make 2 such report available on its website. 3 § 5. This act shall take effect immediately, provided that section 4 four of this act shall expire and be deemed repealed 60 days after tran- 5 smission of the report of the findings and recommendations of the task 6 force to the governor, the temporary president of the senate, the speak- 7 er of the assembly, the minority leader of the senate, and the minority 8 leader of the assembly, as provided in paragraph (a) of subdivision 3 of 9 section four of this act. Provided, however, that the commissioner of 10 the department of criminal justice services shall notify the legislative 11 bill drafting commission upon the transmission of the report of the 12 findings of the task force, as provided in paragraph (a) of subdivision 13 3 of section four of this act, in order that the commission may maintain 14 an accurate and timely effective data base of the official text of the 15 laws of the state of New York in furtherance of effectuating the 16 provisions of section 44 of the legislative law and section 70-b of the 17 public officers law.
