Biometric Data and Student Privacy in New York, New Law

New York State Technology Law § 106-b is a student data privacy law that was recently passed at the end of 2020. The law was passed to address the use of biometric technology and information within educational institutions across New York State, including public and private elementary, secondary, and charter schools, among others. In addition to banning the use of facial recognition software within educational institutions in the state, New York State Technology Law § 106-b also establishes the regulations that must be followed when collecting or using biometric data obtained from students, teachers, and other related faculty, with the goal of safeguarding the personal information and privacy of all parties involved.

How is biometric information defined under the law?

New York State Technology Law § 106-b defines biometric information to include “any measurable physical, physiological or behavioral characteristics that are attributable to a person, including but not limited to facial characteristics, fingerprint characteristics, hand characteristics, eye characteristics, vocal characteristics, and any other characteristics that can be used to identify a person including, but are not limited to: fingerprints; handprints; retina and iris patterns; DNA sequence; voice; gait; and facial geometry.” Alternatively, the law defines biometric identifying technology to mean “any tool using an automated or semi-automated process that assists in verifying a person’s identity based on a person’s biometric information.”

What are the provisions of New York State Technology Law § 106-b?

Under New York State Technology Law § 106-b, the New York State Commissioner of Education is charged with regulating the collection and use of biometric information within educational institutions around the state, including but not limited to facial recognition technology or software. More specifically, the State Commissioner of Education is responsible for issuing a report, with the assistance of the New York State Education Department, that outlines the circumstances under which the utilization of biometric information and technology is suitable and appropriate as it relates to the educational environments that are fostered within the various public and private schools around the state.

Furthermore, the Commissioner of Education and the New York State Education Department are also responsible for determining what measures or protocols need to be adopted in order to ensure that the use of biometric information and technology does not infringe the privacy and civil rights and liberties of the students, educators, and other applicable professionals that work with elementary, secondary, and charter schools within New York State. Some of these considerations must include but are not limited to:

• The potential privacy implications of collecting, storing, using, and transferring the biometric data of students, teachers, and associated faculty members.
• The potential impact that the use of biometric information technology poses to young children that attend educational institutions within New York State, particularly as it pertains to facial recognition software, as well as the impact that factors such as race, gender, ethnicity, and age play in instances of false facial identifications.
• The circumstances under which biometric technology can be used for the purposes of school security, and the effectiveness of such technologies as it concerns the protection of both students and teachers.
• The length of time under which biometric information should be retained, and the manner in which such information should be destroyed.
• The risks that a data breach would pose as it relates to the unauthorized access and use of biometric information.
• The expected maintenance costs that educational institutions would stand to incur as a result of using and storing facial recognition data, including the costs associated with providing an additional level of security for sensitive data.

Why was the New York State Technology Law § 106-b needed?

New York State Technology Law § 106-b was passed in response to concerns that had been raised by members of the general public as it relates to the collection, use, storage, and dissemination of biometric data, particularly as it concerns facial recognition data. While facial recognition software has proven to have a number of beneficial uses, the software also has the potential to violate the privacy rights of individuals. What’s more, as some facial recognition software applications have been shown to be biased towards certain demographics within the country, instances where such technology fails to accurately identify people can lead to adverse consequences. With all this being said, the law seeks to address the issues that the use of facial recognition and biometric technology poses to society as a whole.

As biometric and facial recognition software continues to become more widely available, legislation such as New York State Technology Law § 106-b will only become more commonplace, as the privacy concerns that can arise as a result of using such technology solutions must ultimately be addressed. To this point, while biometric technology can provide a great level of convenience and accessibility for many people, such as disabled persons who may struggle to take advantage of more traditional products and services, such technologies must also be strictly regulated, even more so at it relates to children that are attending school.