Model State Law – Preventing Wearable Mass Surveillance Technology

Sec 1. Definitions

(1) “Biometric Identifier” means data generated by the technological processing, measurement, or analysis of a person’s biological, physical, or behavioral characteristics, which data can be processed for the purpose of identifying an individual. 

(2) “Biometric Data” means one or more biometric identifiers that can be used singly or in combination with each other or with other personal data for identification purposes. 

(3) “Collect” means capture, purchase, receive through trade, or otherwise obtain.

(4) “Covered Entity” means any person, partnership, state or local governmental agency, corporation, or other entity that develops or distributes a wearable technology device.

(5) “User” the person who is using the specific wearable technology device. 

(6) “Wearable Technology Device” means a technological device that is intended to be worn on the body, integrated into clothing or accessories, or attached to accessories.

(7) “Biometric Identification” means use of biometric data or biometric identifiers to identify a person.

Sec. 2  Restrictions

(1) No covered entity may make available to a person within state X a wearable technology device that is enabled by the covered entity, either on its own or in conjunction with a service, to engage in biometric identification of any person other than the user. 

(2) No person, partnership, state or local governmental agency, corporation, or other entity may make available to a person within state X a service that is authorized to be used in conjunction with a wearable technology device to 

(a) process biometric identifiers or biometric data of any person other than the direct user that is captured by the device or 

(b) generate biometric identifiers or biometric data of any person other than the direct user from any images, video, audio or other data captured by the device.

Sec. 3 – Enforcement

(1) Attorney General Enforcement – Any person, business or other entity that violates this act shall be subject to an injunction and disgorgement of any unjust gains due to violation of this act, and shall be liable for a penalty of not more than $2500 for each violation, which shall be assessed and recovered in a civil action brought by the Attorney General. 

(2)  Private Right of Action – Any person who finds that their biometric data or biometric identifiers has been used for biometric identification by a wearable technology device either on its own or in conjunction with a service may institute a civil action on their own, or on a classwide basis against the covered entity making available the wearable technology device and/or the person or entity making available the service that is used in conjunction with the wearable technology device for the purpose of biometric identification, to recover damages in an amount not less than $250 per user per incident or actual damages, whichever is greater; and/or to obtain injunctive or declaratory relief, or reasonable attorney’s fees.

Sec. 4 – Severability

If any provision of this title, or an amendment made by this title, is determined to be unenforceable or invalid, the remaining provisions of this title and the amendments made by this title shall not be affected.