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):|
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.