A4306

An Act concerning biometric identifiers and supplementing Title 2A of the New Jersey Statutes.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. This act shall be known and may be cited as the "Biometric Identifier Privacy Act."

2. As used in this act:

"Biometric identifier" means a retina or iris scan, fingerprint, voiceprint, record of a hand or a face geometry, DNA, or any other means of identifying an individual with a high degree of certainty using a physical characteristic of the individual.

"Governmental entity" means the State, any agency, authority, or employee thereof, or any political subdivision of the State, including but not limited to any county, municipality, or school district, or any agency, authority, or employee thereof.

3. a. Except as provided in subsection b. of this section, no governmental entity shall obtain a biometric identifier of an individual without authorization of the individual.

b. Nothing in this act shall prohibit any law enforcement agency or officer from obtaining the biometric identifiers other than DNA of any individual immediately upon arrest for an indictable offense, or for any of the grounds specified in subsection a. of section 5 of P.L.1991, c.261 (C.2C:25-21) or of any individual believed to be wanted for an indictable offense, or believed to be an habitual criminal, or within a reasonable time after the filing of a complaint by a law enforcement officer charging any individual with an indictable offense, or upon the arrest of any individual for shoplifting, pursuant to N.J.S.2C:20-11, or upon the arrest of any individual for prostitution, pursuant to N.J.S.2C:34-1, or the conviction of any other individual charged with a nonindictable offense, where the identity of the person charged is in question. A DNA sample may be collected from such individual only as permitted by the “DNA Database and Databank Act of 1994,” P.L.1994, c.136 (C.53:1-20.17 et seq.) or section 1 of P.L.2001, c.377 (C.2A:84A-32a).

4. a. A governmental entity that possesses a biometric identifier of an individual shall not sell, lease, or otherwise disclose the biometric identifier to another person unless:

(1) the individual consents to the sale, lease or disclosure;

(2) the sale, lease or disclosure is required or permitted by a federal or State law; or

(3) the sale, lease or disclosure is made by or to a law enforcement agency for a law enforcement purpose.

b. A governmental entity that possesses a biometric identifier of an individual shall store, transmit, and protect from disclosure the biometric identifier using reasonable care and in a manner that is the same as or more protective than the manner in which the governmental entity stores, transmits, and protects other confidential information.

c. A governmental entity that possesses a biometric identifier of an individual shall establish a reasonable procedure under which an individual is entitled to have the governmental entity correct erroneous information about the individual.

d. Information compiled pursuant to this section shall not be subject to disclosure pursuant to P.L.1963, c.73 (C.47:1A-1 et seq.) as amended and supplemented.

5. A person aggrieved by a violation of P.L. , c. (C. ) (pending before the Legislature as this bill) may bring an action in the Superior Court to enjoin further violation and to recover for the actual damage sustained by reason of such violation, including costs and reasonable attorneys fees.

6. This act shall take effect immediately.

STATEMENT

This bill would prohibit governmental entities from obtaining a biometric identifier of an individual without that individual’s consent, except that nothing in the bill would prohibit any law enforcement agency or officer from obtaining biometric identifiers of an individual who has been placed under arrest. The bill would not alter the circumstances under which a DNA sample may be collected from a person who was arrested or convicted of a criminal offense as provided in section 1 of P.L.2001, c.377 (C.2A:84A-32a) and the “DNA Database and Databank Act of 1994,” P.L.1994, c.136 (C.53:1-20.17 et seq.).

As used in this bill, "biometric identifier" means a retina or iris scan, fingerprint, voiceprint, record of a hand or a face geometry, DNA, or any other means of identifying an individual with a high degree of certainty using a physical characteristic of the individual. These identifiers are recorded and utilized by biometrics technology, which involves noninvasive computer technology to provide automatic identification or identity verification of individuals. Biometrics technology is being used for criminal identification, in airport security systems, at border clearances, for transaction verifications in internet business, and for identification and management purposes by hospitals and school districts.

A governmental entity that possesses a biometric identifier of an individual would be prohibited from selling, leasing, or otherwise disclosing the biometric identifier to another person unless: (1) the individual consents to the sale, lease or disclosure; (2) the sale, lease or disclosure is required or permitted by a federal or State law; or (3) the sale, lease or disclosure is made by or to a law enforcement agency for a law enforcement purpose.

Additionally, a governmental entity that possesses an individual’s biometric identifier would be required to store, transmit, and protect from disclosure the biometric identifier using reasonable care and in a manner that is the same as or more protective than the manner in which the governmental entity stores, transmits, and protects other confidential information. The governmental entity would additionally be required to establish a reasonable procedure under which an individual is entitled to have the governmental entity correct erroneous information about the individual. Information compiled pursuant to the bill’s provisions would not be subject to disclosure pursuant to the so-called “Open Public Records Act,” P.L.1963, c.73 (C.47:1A-1 et seq.) as amended and supplemented.

A person aggrieved by a violation of the bill’s provisions would be permitted to bring an action in the Superior Court to enjoin further violation and to recover for the actual damage sustained by reason of such violation, including costs and reasonable attorneys fees.