United States: The Facial Scan That Launched A Thousand Laws: Biometric Privacy Legislation Trend Continues To Grow Nationwide

Last Updated: August 28 2019
Article by Kimberly J. Gold, Michael B. Galibois and Vincent James (Jim) Barbuto

Many states are following in the footsteps of Illinois' Biometric Information Privacy Act (BIPA), a law that has led to an increase in the volume of class action privacy litigation and highlighted the importance of enterprise-level management of biometric data (e.g., fingerprint, voiceprint, and retina, facial, or iris image). Organizations that collect and use biometric data for employee tracking or consumer-facing uses (including the collection and use of characteristics like heart rate or step counts) should be aware of growing trends in biometric privacy laws (and associated risk of potential follow-on class actions) and should be proactive by evaluating their compliance with existing and soon-to-be-effective laws and anticipating new laws on the horizon in other states.

Earlier this year, in Rosenbach v. Six Flags Entertainment Corporation, the Illinois Supreme Court ruled that a plaintiff need only plead a violation of BIPA to be considered "aggrieved" as the statute expressly requires to maintain a private right of action. See 740 Ill. Comp. Stat. Ann. 14/20. Since then, several lawsuits have sprung up under BIPA, including by employee-plaintiffs for employer actions such as the collection and use of fingerprints for the tracking of time worked or security controls. Multiple states have either passed or introduced BIPA-like bills that are indicative of increased risk for organizations that collect, use, and store the biometric information of either their employees or customers.

Numerous states have followed in BIPA's footsteps by either expanding the definition of "personal information" under state data breach notification laws to include biometric information or creating new rights (including private rights of action) for biometric data subjects. Two high-profile examples of recent privacy laws that incorporate biometrics are New York's SHIELD Act and the California Consumer Privacy Act (CCPA) (which is not yet effective and faces continued amendments). If amendments to the CCPA expand the currently contemplated private right of action to encompass any violation of the law, the litigation landscape could be similar to Illinois' under BIPA. As indicated below, there is a concerted effort by a growing number of states to augment organizations' obligations to be transparent and restrict their ability to collect, store, and transact with biometric data without sufficient notice and consent. Below is a high-level overview of the current landscape of state laws that touch on biometric data and their status.

In effect Passed but not yet effective Pending or on the horizon
Illinois: 740 Ill. Comp. Stat. 14/1 et seq. (BIPA): Includes private right of action and low threshold for allegation of injury; noncompliance can result in $1,000 – $5,000 for each improper collection of biometric data; applies to employee data.

Texas: Tex. Bus. & Com. Code Ann. section 503.001(b) (2009), or the Capture or Use of Biometric Identifier Act (CUBI): Requires organizations to provide notice and obtain consent before collecting biometric data and precludes the sale, lease, and disclosure of biometric data for commercial purposes without appropriate consent or disclosure. No private right of action (only the Texas attorney general can recover civil penalties).

Washington: Wash. Rev. Code 19.375.010: Collection and use of biometric identifiers without notice or consent and for a commercial purpose is prohibited, but collection and use for "security purposes" are excluded. No private right of action (only the Washington attorney general can enforce).

Arkansas: Amends previous Personal Information Protection Act to expand the definition of "personal information" to include biometric data and applies data breach notification requirements to biometric data. No private right of action.

California: Cal. Civ. Code section 1798.100 (effective January 1, 2020) (CCPA): Defines "personal information" to include biometric information, and requires covered businesses (any for-profit entity that collects a consumer's personal information and does business in California with an annual gross revenue in excess of $25 million; buys, receives, shares, or sells the personal information of more than 50,000 customers; or derives 50 percent or more annual revenue from selling consumers' personal information) to disclose to consumers information about the collection of their personal data. As noted above, the CCPA continues to face a shifting landscape of amendments prior to the effective date.

The following cities and states have proposed legislation that seeks to expand compliance obligations with respect to biometric information collected from consumers or employees in a manner similar to BIPA, but these laws remain pending (e.g., in committee or debate):

Alaska

Arizona

Massachusetts

Michigan

New Hampshire

New York (and separately, New York City)

Comment and practical implications

In order to mitigate the risk of litigation and class actions springing from the proliferation of these laws, particularly in the states where private rights of action are contemplated, organizations should be proactive and apply lessons learned from BIPA compliance to their continued preparedness for current and upcoming biometric laws, especially CCPA. The time and resources allocated to a refresh of policies and procedures could be far less costly than reacting after the fact to litigation spawned from one of the many biometric privacy laws on the horizon. Most important, organizations that have or anticipate having employees or consumers in the states listed above should consider: (1) their written policies and procedures regarding the collection, use, storage, retention, and deletion of personal information and biometric information in particular, including how those practices are reflected in the enterprise-wide retention schedule and how that data is secured within company systems and applications; (2) what, if any, notice and consent framework the business has in-place for obtaining biometric data from employees or customers; (3) fully evaluating the current or anticipated use-cases for collected biometric information (including limitations and restrictions against third-party disclosure or sale and evaluating what, if any, third-party vendors interact with biometric data collected by the business and for what purpose); and (4) ensuring that vendor diligence and contracting sufficiently address compliance with all applicable laws and that responsibility is appropriately allocated for contingencies such as a data breach or limitation of sale of biometric data to the extent that third parties do interact with biometric data collected by the company.

This article is presented for informational purposes only and is not intended to constitute legal advice.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions