Last year, New York City enacted a biometric privacy law for many commercial businesses. The Ordinance went into effect in early July 2021. Here are a few things commercial tenants need to know about the new Ordinance. See the link to a PDF of the Ordinance text here.
To Whom Does the Biometric Ordinance Apply?
The Ordinance applies to a “commercial establishment” that collects biometric data or information from or about their “customers.” The term “customer” is defined to mean “a purchaser or lessee, or a prospective purchaser or lessee, of goods or services from a commercial establishment.” Since employees are not “customers,” the Ordinance does not apply to collecting and using employee biometric data. A “commercial establishment” is defined narrowly by the Ordinance as any place of entertainment, a retail store, or any food/drink establishment. Explicitly excluded from coverage are government offices and financial institutions. However, by not being defined as “commercial establishments,” many other institutions, like office buildings, warehousing, and medical facilities, are also excluded.
What is “Biometrics”?
In general terms, a “biometric identifier” is anything about a person’s biology or behavior that can be used to uniquely identify the person. Commonly recognized biometric identifiers include:
- Fingerprints
- Handprints
- Eye scans
- Face geometry — often used, for example, to unlock a smartphone or personal device
But, biometric technology is very advanced. Now, there is a long list of biometric identifiers, including:
- Voice-prints
- Gait identifiers — the unique way a person walks or moves
- Palm and other blood-vessel configurations
- Manual-device-use identifiers — how a person uniquely uses a computer keyboard or “thumbs” a smartphone/device
- And more
All of these are covered by the NYC Ordinance.
What Does the New Ordinance Require?
The Ordinance covers the “collection, retention, conversion, storage or sharing” of biometric data. For any of these activities, commercial establishments must disclose such collection, retention, conversion, storage, or sharing “… by placing a clear and conspicuous sign near all of the commercial establishment’s customer entrances notifying customers in plain, simple language … that customers’ biometric identifier information is being collected, retained, converted, stored or shared, as applicable.”
In addition, the Ordinance makes it unlawful “… to sell, lease, trade, share in exchange for anything of value or otherwise profit from the transaction of biometric identifier information.”
What About Photographs and Video?
Photographs and video can be deemed forms of biometric data but are explicitly exempt from the Ordinance’s coverage if the video and photo images are:
- Not run through or analyzed by software or applications that identify or assist in identifying individuals based on physiological or biological characteristics and
- Not shared, sold, or leased to third parties other than law enforcement agencies
What are the Punishments for Violation?
The Ordinance grants customers the right to sue a commercial establishment if the Ordinance is violated. Successful litigants can be awarded statutory damages of $500 for every negligent violation of any subdivision of the Ordinance. Statutory damages are $5,000 for every violation that is deemed to be intentional or reckless. Further, plaintiffs can be awarded reasonable attorneys’ fees and costs, including expert witness fees and other litigation expenses. The Ordinance also permits injunctive relief.
Contact the Business Attorneys at Wright Law Firm NYC Today
For more information, call the experienced New York City business lawyers at Wright Law Firm NYC. We provide top-tier legal services for NYC businesses, small and large. We also offer proven litigation services for New York state and federal courts. To schedule a consultation, please get in touch with our office by e-mail or call us at (212) 619-1500.