January 26, 2021 Suspension of Facial Recognition and Biometric Technologies in Schools
KEEPING YOU INFORMED…
We are writing to advise you that, on December 22, 2020, Governor Cuomo signed legislation suspending the use of biometric identifying technologies including, but not limited to, facial recognition technology, for all New York State public and nonpublic elementary and secondary schools including charter schools.
The new legislation (A6787-D/S5140-B) went immediately into effect and placed a moratorium on the purchase or utilization of biometric identifying technology for any purpose, including school security, until at least July 1, 2022 or until the Commissioner of Education authorizes its purchase or use, whichever occurs later.
Pursuant to the legislation, the Commissioner may not authorize the use or purchase of this technology until a study is conducted and a report is completed with recommendations regarding the circumstances in which its utilization is appropriate in schools and the restrictions and guidelines to be enacted to protect individual privacy, civil rights and civil liberty interests. The final report will be made public and presented to the Governor, the Temporary President of the Senate and the Speaker of the Assembly and will include recommendations concerning topics including:
• the privacy implications of collecting, storing and/or sharing biometric information of students, teachers, school personnel and the general public entering a school or school grounds;
• the potential impact of the use of biometric identifying technology on student civil liberties and student civil rights;
• whether the technology may be used for school security and the effectiveness of the technology to protect students and school personnel;
• whether information collected with the technology may be used and by whom;
• the length of time biometric information may be retained and in what manner;
• the risk of a breach of biometric information and appropriate consequences;
• expected maintenance costs resulting from the storage and use of facial recognition images and other biometric information;
• whether, and in what manner, the use of the technology should be disclosed; and
• the identification of any existing legislation that may be implicated by or in conflict with biometric technology and the maintenance of records.
Prior to the Commissioner drafting the final report, the State Office of Information Technology and the State Education Department will conduct a study addressing the technology’s potential impact in New York State schools. Their combined efforts will include consulting stakeholders, scheduling public hearings, and seeking feedback from teachers, school administrators, parents, and individuals with expertise in areas such as school safety, data privacy and student civil rights.
The suspension of all biometric identifying technology could impact your use of some school security or attendance devices and may require you to use something else in its place. This law may also impact your policies, employment agreements or collective bargaining agreements and require a review or change in current language. If you have any questions regarding anything related to this memorandum, please contact Lindsay T. Crocker, Michelle A. Mahabirsingh or one of our other attorneys by calling 631-694-2300.
THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF THE CURRENT LAW. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.
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© Lamb & Barnosky, LLP 2021