[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 4400 Introduced in Senate (IS)]

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116th CONGRESS
  2d Session
                                S. 4400

 To regulate the collection, retention, disclosure, and destruction of 
             biometric information, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             August 3, 2020

  Mr. Merkley (for himself and Mr. Sanders) introduced the following 
    bill; which was read twice and referred to the Committee on the 
                               Judiciary

_______________________________________________________________________

                                 A BILL


 
 To regulate the collection, retention, disclosure, and destruction of 
             biometric information, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``National Biometric Information 
Privacy Act of 2020''.

SEC. 2. DEFINITIONS.

     In this Act:
            (1) Biometric identifier.--The term ``biometric 
        identifier''--
                    (A) includes--
                            (i) a retina or iris scan;
                            (ii) a voiceprint;
                            (iii) a faceprint (including any faceprint 
                        derived from a photograph);
                            (iv) fingerprints or palm prints; and
                            (v) any other uniquely identifying 
                        information based on the characteristics of an 
                        individual's gait or other immutable 
                        characteristic of an individual;
                    (B) does not include writing samples, written 
                signatures, photographs, human biological samples used 
                for valid scientific testing or screening, demographic 
                data, tattoo descriptions, or physical descriptions 
                such as height, weight, hair color, or eye color;
                    (C) does not include donated organs, tissues, or 
                parts or blood or serum stored on behalf of recipients 
                or potential recipients of living or cadaveric 
                transplants and obtained or stored by a federally 
                designated organ procurement agency;
                    (D) does not include information captured from a 
                patient in a health care setting for a medical purpose 
                or information collected, used, or stored for health 
                care treatment, payment, or operations under the Health 
                Insurance Portability and Accountability Act of 1996 
                (Public Law 104-191); and
                    (E) does not include an x ray, roentgen process, 
                computed tomography, MRI, PET scan, mammography, or 
                other image or film of the human anatomy used to 
                diagnose, prognose, or treat an illness or other 
                medical condition or to further validate scientific 
                testing or screening.
            (2) Confidential and sensitive information.--The term 
        ``confidential and sensitive information''--
                    (A) means personal information that can be used to 
                uniquely identify an individual or an individual's 
                account or property; and
                    (B) includes genetic markers, genetic testing 
                information, unique identifier numbers to locate 
                accounts or property, account numbers, personal 
                identification numbers, pass codes, driver's license 
                numbers, or Social Security numbers.
            (3) Private entity.--The term ``private entity''--
                    (A) means any individual, partnership, corporation, 
                limited liability company, association, or other group, 
                however organized; and
                    (B) does not include any Federal, State, or local 
                government agency or academic institution.
            (4) Written release.--The term ``written release'' means--
                    (A) specific, discrete, freely given, unambiguous, 
                and informed written consent given by an individual who 
                is not under any duress or undue influence of an entity 
                or third party at the time such consent is given; or
                    (B) in the context of employment, a release 
                executed by an employee as a condition of employment.

SEC. 3. COLLECTION, RETENTION, DISCLOSURE, AND DESTRUCTION OF BIOMETRIC 
              INFORMATION.

    (a) Written Policy.--
            (1) In general.--Not later than 60 days after the date of 
        the enactment of this Act, any private entity in possession of 
        biometric identifiers or biometric information concerning an 
        individual shall develop and make available to the public a 
        written policy establishing a retention schedule and guidelines 
        for permanently destroying such biometric identifiers and 
        biometric information not later than the earlier of--
                    (A) the date on which the initial purpose for 
                collecting or obtaining such identifiers or information 
                has been satisfied, if the individual from whom the 
                biometric information was collected--
                            (i) freely consented to the original 
                        purpose for such collection; and
                            (ii) could have declined such collection 
                        without consequence; or
                    (B) 1 year after the individual's last intentional 
                interaction with the private entity.
            (2) Compliance.--Absent a valid warrant or subpoena issued 
        by a court of competent jurisdiction, a private entity in 
        possession of biometric identifiers or biometric information 
        shall comply with the retention schedule and destruction 
        guidelines established pursuant to paragraph (1).
    (b) Limitations.--
            (1) In general.--A private entity may not collect, capture, 
        purchase, receive through trade, or otherwise obtain a person's 
        or a customer's biometric identifier or biometric information 
        unless--
                    (A) the entity requires the identifier or 
                information--
                            (i) to provide a service for the person or 
                        customer; or
                            (ii) for another valid business purpose 
                        specified in the written policy published 
                        pursuant to section 3; and
                    (B) the entity first--
                            (i) informs the person or customer, or his 
                        or her legally authorized representative, in 
                        writing--
                                    (I) that such biometric identifier 
                                or biometric information is being 
                                collected or stored; and
                                    (II) of the specific purpose and 
                                length of term for which a biometric 
                                identifier or biometric information is 
                                being collected, stored, and used; and
                            (ii) receives a written release executed by 
                        the subject of the biometric identifier or 
                        biometric information or by the subject's 
                        legally authorized representative.
            (2) Written release.--A written release under paragraph 
        (1)(B)--
                    (A) may not be sought through, as a part of, or 
                otherwise combined with any other consent or permission 
                seeking instrument or function;
                    (B) may not be combined with an employment 
                contract; and
                    (C) if it involves a minor, may only be obtained 
                through the minor's parent or guardian.
    (c) Prohibited Acts.--A private entity in possession of a biometric 
identifier or biometric information may not sell, lease, trade, use for 
advertising purposes, or otherwise profit from a person's or a 
customer's biometric identifier or biometric information.
    (d) Disclosure.--A private entity in possession of a biometric 
identifier or the biometric information of a person, including a 
consumer, job applicant, employee, former employee, or contractor, may 
not disclose, redisclose, sell, lease, trade, use for advertising 
purposes, otherwise disseminate, or profit from such biometric 
identifier or biometric information unless--
            (1) the subject of the biometric identifier or biometric 
        information, or the subject's legally authorized 
        representative, provides a written release to such specified 
        action immediately prior to such disclosure or redisclosure, 
        including a description of--
                    (A) the data that will be disclosed;
                    (B) the reason for such disclosure; and
                    (C) the recipients of such data;
            (2) the disclosure or redisclosure completes a financial 
        transaction requested or authorized by the subject of the 
        biometric identifier or the biometric information or the 
        subject's legally authorized representative; or
            (3) the disclosure or redisclosure--
                    (A) is required by Federal, State, or municipal 
                law; or
                    (B) is required pursuant to a valid warrant or 
                subpoena issued by a court of competent jurisdiction.
    (e) Conditions.--A private entity in possession of a biometric 
identifier or biometric information shall store, transmit, and protect 
from disclosure all biometric identifiers and biometric information--
            (1) using the reasonable standard of care within the 
        private entity's industry; and
            (2) in a manner that is the same as, or more protective 
        than, the manner in which the private entity stores, transmits, 
        and protects other confidential and sensitive information.
    (f) Right To Know.--Any business that collects, uses, shares, or 
sells biometric identifiers or biometric information, upon the request 
of an individual, shall disclose, free of charge, any such information 
relating to such individual collected during the preceding 12-month 
period, including--
            (1) the categories of personal information;
            (2) specific pieces of personal information;
            (3) the categories of sources from which the business 
        collected personal information;
            (4) the purposes for which the business uses the personal 
        information;
            (5) the categories of third parties with whom the business 
        shares the personal information; and
            (6) the categories of information that the business sells 
        or discloses to third parties.

SEC. 4. CAUSE OF ACTION.

    (a) In General.--Any individual aggrieved by a violation of section 
3 may bring a civil action in a court of competent jurisdiction against 
a private entity that allegedly committed such violation. Any such 
violation constitutes an injury-in-fact and a harm to any affected 
individual.
    (b) Admissibility.--Except in a judicial investigation or 
proceeding alleging a violation of section 3, information obtained in 
violation of section 3 is not admissible by the Federal Government in 
any criminal, civil, administrative, or other investigation or 
proceeding.
    (c) Right to Sue.--An individual described in subsection (a) may 
institute legal proceedings against a private entity alleged to have 
violated section 3 for the relief described in subsection (e) in any 
court of competent jurisdiction.
    (d) Enforcement by State Attorneys General.--The chief law 
enforcement officer of a State, or any other State officer authorized 
by law to bring actions on behalf of the residents of a State, may 
bring a civil action, as parens patriae, on behalf of the residents of 
such State in an appropriate district court of the United States to 
enforce this Act if the chief law enforcement officer or other State 
officer has reason to believe that the interests of the residents of 
the State have been or are being threatened or adversely affected by a 
violation of section 3.
    (e) Forms of Relief.--
            (1) In general.--A plaintiff bringing a civil action under 
        this section may recover--
                    (A)(i) for the negligent violations of any 
                provision of section 3, the greater of--
                            (I) $1,000 in liquidated damages per 
                        violation; or
                            (II) the actual damages suffered by the 
                        plaintiff; or
                    (ii) for the intentional or reckless violation of 
                any provision of section 3, the sum of--
                            (I) the actual damages suffered by the 
                        plaintiff; and
                            (II) any punitive damages awarded by the 
                        court, which shall be limited to $5,000 per 
                        violation;
                    (B) reasonable attorneys' fees and costs, including 
                expert witness fees and other litigation expenses; and
                    (C) other relief, including an injunction, as the 
                court may deem appropriate.
            (2) Specific performance.--A court may require a private 
        entity to permanently destroy the biometric identifiers, 
        biometric information, or confidential and sensitive 
        information of a plaintiff under this section.

SEC. 5. RULES OF CONSTRUCTION.

    Nothing in this Act may be construed--
            (1) to impact the admission or discovery of biometric 
        identifiers and biometric information in any action of any kind 
        in any court, or before any tribunal, board, agency, or person;
            (2) to conflict with the Health Insurance Portability and 
        Accountability Act of 1996 (Public Law 104-191);
            (3) to conflict with title V of the Federal Gramm-Leach-
        Bliley Act (15 U.S.C. 6801 et seq.);
            (4) to apply to a contractor, subcontractor, or agent of a 
        Federal, State, or local government agency in the course of 
        employment with such agency; or
            (5) to preempt or supersede any Federal, State, or local 
        law that imposes a more stringent limitation than the 
        limitations described in section 3.
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