New York City businesses should be aware that the City’s new biometric privacy ordinance is now in effect. So, if you are not yet in compliance, the time to act is now.

Under New York City’s biometric privacy ordinance, which took effect on July 9, 2021, businesses must post notices and signs at their doors informing customers how their data will be collected. Failing to comply with the notice requirement can result in costly penalties.

How Is Biometric Data Defined?

The new ordinance regulates the use of “biometric identifier information,” which is defined as “a physiological or biological characteristic that is used … singly or in combination, to identify, or assist in identifying, an individual, including, but not limited to: (i) a retina or iris scan, (ii) a fingerprint or voiceprint, (iii) a scan of hand or face geometry, or any other identifying characteristic.”

Notably, the law does not apply to biometric identifier information collected through photographs or video recordings, if: (i) the images or videos collected are not analyzed by software or applications that identify, or that assist with the identification of, individuals based on physiological or biological characteristics, and (ii) the images or video are not shared with, sold or leased to third parties other than law enforcement agencies.

Who Does the New Biometric Privacy Law Apply To?

New York City’s new data privacy ordinance applies to a wide range of commercial establishments, including retail, food, and entertainment businesses. A “food and beverage” establishment is defined as one that “gives or offers for sale food or beverages to the public for consumption or use on or off the premises, or on or off a pushcart, stand or vehicle.” Meanwhile, a “retail” establishment is one “wherein consumer commodities are sold, displayed or offered for sale, or where services are provided to consumers at retail.” Finally, entertainment establishments are defined to include “any privately or publicly owned and operated entertainment facility, such as a theater, stadium, arena, racetrack, museum, amusement park, observatory, or other place where attractions, performances, concerts, exhibits, athletic games or contests are held.”

What Is Required Under the New Law?

New York City’s biometric data privacy ordinance requires any commercial establishment that collects, retains, converts, stores or shares biometric identifier information of customers to disclose such activity by placing a “clear and conspicuous” sign near all of the commercial establishment’s customer entrances. The disclosure must notify customers in “plain, simple language” that customers’ biometric identifier information is being collected, retained, converted, stored or shared, as applicable.

The ordinance also makes it “unlawful to sell, lease, trade, share in exchange for anything of value or otherwise profit from the transaction of biometric identifier information.” Notably, none of the categories of biometric identifier information are excluded from this requirement.

What Are the Penalties for Violating NYC’s Biometric Data Privacy Ordinance?

Businesses should be aware that, much like the Illinois Biometric Information Privacy Act (BIPA), New York City’s biometric privacy ordinance establishes a private right of action. At least 30 days prior to initiating any action against a commercial establishment for a violation of the notice requirement, the aggrieved person must provide written notice to the commercial establishment setting forth their allegation.

If within 30 days, the commercial establishment cures the violation and provides the aggrieved person an express written statement that the violation has been cured and that no further violations shall occur, no action may be initiated against the commercial establishment. If a commercial establishment continues to violate the ordinance, the aggrieved person may initiate an action. No prior written notice is required for actions alleging a violation of the provision prohibiting the sale/sharing of biometric data. A prevailing party may recover damages of $500 for each violation of the notice requirement, as well as for each negligent violation of the prohibition of the sale/sharing of biometric data. For each intentional or reckless violation of the provision prohibiting the sale/sharing of biometric data, damages of $5,000 may be awarded. Courts are also authorized to award a prevailing party reasonable attorneys’ fees and costs, including expert witness fees and other litigation expenses.

If you have questions, please contact us

If you have any questions or if you would like to discuss the matter further, please contact me, Thomas Herndon, Jr., or the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.