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Financial Services Law Insights and Observations

New York introduces biometric privacy act

State Issues State Legislation Privacy/Cyber Risk & Data Security Biometric Data

State Issues

On January 6, New York Assembly Bill A 27 was prefiled in the 2021-22 state legislative session, which would establish the Biometric Privacy Act and establish provisions regarding the retention, collection, disclosure and destruction of biometric identifiers or biometric information. Highlights of the bill include:

  • Private entities in possession of biometric identifiers or information will be required to develop a written public policy “establishing a retention schedule and guidelines for permanently destroying biometric identifiers and information when the initial purpose for collecting or obtaining such identifiers or information has been satisfied or within three years of the individual’s last interaction with the private entity, whichever occurs first.” Further, unless a private entity possesses a valid warrant or court subpoena, it must comply with its established retention schedule and destruction guidelines.
  • Prior to obtaining a person’s biometric identifier or information, a private entity must inform the subject (or a subject’s legally authorized representative) in writing that the identifier or information is being collected or stored, the specific purpose and length of term for which it is being collected, stored, and used, and must receive a written release from the subject or legally authorized representative.
  • Private entities may not sell, lease, trade, or otherwise profit from a person’s biometric identifier or information.
  • Private entities may not disclose, redisclose, or otherwise disseminate such information unless (i) the subject provides consent; (ii) “the disclosure or redisclosure completes a financial transaction requested or authorized by the subject” or the subject’s legally authorized representative; or (iii) the information is required by a valid warrant or court subpoena.
  • Private entities must take measures to store, transmit, and protect all biometric identifiers and information from disclosure “using the reasonable standard of care within the private entity’s industry” and “in a manner that is the same as or more protective than the manner in which the private entity stores, transmits, and protects other confidential and sensitive information.”
  • The bill provides a private right of action for any person aggrieved by the bill’s provisions, including damages of $5,000 or actual damages (whichever is greater), reasonable attorneys’ fees and costs, and other relief including injunctive relief as deemed appropriate.

Notably, the New York Biometric Privacy Act is a close parallel to the Illinois Biometric Information Privacy Act, which was enacted in 2008.

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