What are the legal implications of biometric data collection

Biometric technology has transformed daily life, from employee timekeeping to smartphone security, offering both convenience and security. However, as its use grows, so do the legal challenges surrounding biometric data collection. This article explores the evolving legal landscape, the compliance hurdles businesses face, and the future of biometrics in the context of stricter privacy laws. As these trends accelerate, businesses must consider the legal implications for growth, security, and reputation. Early legislation, like the Illinois Biometric Information Privacy Act (BIPA), passed in 2008, served as a landmark, demonstrating that this emerging technology necessitates specific legal guidelines. BIPA, along with similar legislation across other states and internationally, emphasizes the need for proactive measures. This raises the question: what are the legal implications of biometric data collection for my organization, both now and in the future?

The Impact of BIPA on the Biometric Data Landscape

BIPA is a crucial turning point in biometric data legislation in the United States. Unlike more general data privacy laws, BIPA focuses specifically on the collection, use, storage, and disclosure of biometric data. It’s known for its strict requirements and its provision for a private right of action, meaning individuals can sue businesses for violations. Although only a handful of states, such as Illinois, Texas, and Washington, currently have specific laws regulating biometric data collection, many others are beginning to follow suit, proposing and enacting similar bills.

BIPA’s Requirements and Their Implications

So, what are the implications of BIPA in terms of what an organization needs to do? The BIPA requires businesses operating in Illinois that handle biometric information to meet several specific requirements. They must:

• Obtain informed written consent from individuals before collecting or storing biometric data. This includes notifying them of the purpose of data collection and how long the information will be stored.
• Develop and maintain a publicly available written policy outlining their data retention and destruction guidelines. These policies must state when and how biometric data will be permanently destroyed, especially if no longer needed or upon request.
• Use reasonable security measures to protect the collected biometric data. This encompasses safeguarding against unauthorized access, disclosure, use, or destruction.
• Avoid selling, leasing, or profiting from individuals’ biometric identifiers or information. They also cannot disclose biometric information without consent except under certain legal exceptions.

Beyond BIPA, a wave of new legislation on biometric data protection is gaining momentum nationwide. This trend further underscores the urgency for organizations, regardless of their size or industry, to prioritize biometric data compliance. To stay current on legislation trends and their potential financial impacts on businesses, consider exploring the costs of running a franchise. Additionally, understanding the legal processes involved in situations like divorce in Texas can be helpful if there are concerns of personal information becoming compromised.

Notable BIPA Cases

Understanding the legal implications of biometric data collection often requires examining real-world examples where BIPA was enforced. There have been several landmark BIPA lawsuits, such as:

• Rosenbach v. Six Flags Entertainment Corp.: In this 2019 case, the Illinois Supreme Court held that a plaintiff does not need to show actual injury to pursue a claim under BIPA, solidifying BIPA’s strong stance on privacy protection. This decision expanded individuals’ ability to file lawsuits based on technical violations, leading to a rise in class-action lawsuits.
• Rogers v. BNSF Railway Company: This 2022 case, the first BIPA class action to go to trial, resulted in a landmark $228 million damages award against BNSF Railway for collecting fingerprint scans without proper consent or a clear written policy. It clarified that separate claims accrue each time biometric data is improperly scanned or used, potentially leading to very high damages.
• Patel v. Facebook, Inc.: This high-profile 2020 case culminated in a massive $650 million settlement where Facebook was penalized for using facial recognition technology without users’ consent, underscoring that high-profile tech companies aren’t exempt from the implications of BIPA and similar biometric privacy laws.

These high-profile legal battles highlight how seriously courts take biometric data breaches. They also underscore the need for vigilance and adherence to privacy regulations, emphasizing that the legal implications of biometric data collection are constantly being reshaped through litigation.

What Are Emerging Legal Frameworks and Risks?

While Illinois led the charge in establishing a dedicated legal framework for protecting biometric data, a nationwide wave of legislation is on the horizon, each with varying rules and penalties. Texas and Washington also have comprehensive biometric data privacy laws. While not creating a private right of action like BIPA, both require companies to provide notice and obtain consent before collecting, using, and storing this sensitive data.

It is equally important to understand that the absence of federal-level legislation leads to inconsistencies and variations in these state-specific laws. This can be challenging for businesses with multi-state operations. Many states are increasingly incorporating biometric data protection into broader consumer privacy statutes. California, Colorado, Connecticut, Utah, and Virginia all consider biometric information “sensitive” and subject to greater protection.

Many municipalities are joining this growing movement to regulate biometric data usage. New York City has its own Biometric Information Privacy Law restricting commercial use without notice and consent, illustrating that local jurisdictions are equally determined to protect their citizens. What are the legal implications of biometric data collection at a federal level? Currently, the United States has no federal biometric privacy law. There is, however, proposed federal legislation, including The National Biometric Information Privacy Act of 2020 and other bills introduced since. With its impact on everything from law enforcement to employee onboarding and access control systems, calls for a consistent nationwide standard are becoming louder.

The EU’s GDPR and the Global Impact

Although this post has focused on U.S. law, the global landscape surrounding biometric data protection is undergoing a similar evolution. It’s worth exploring the implications of the EU’s General Data Protection Regulation (GDPR). In 2003, an EU working paper considered biometrics within a data protection context. It determined that in most cases, biometric data is personal data and can always be considered “information relating to a natural person.” The GDPR, while not exclusively addressing biometric information, classifies it as sensitive personal data, necessitating explicit consent from individuals for its processing. This comprehensive approach has served as a blueprint for data privacy laws across the globe. With global organizations processing biometric data, adherence to different, sometimes stricter regulations, is an essential factor to address.

A notable example of GDPR’s impact on companies collecting biometric data can be found in the 2019 case of Clearview AI. This U.S.-based company faced substantial scrutiny from EU regulators due to its large-scale facial recognition database. The case highlights that non-compliance with international data privacy laws like GDPR can result in sanctions and legal action. In the digital age, large databases storing this type of information raise significant privacy issues, making compliance crucial for businesses operating internationally.

Best Practices: Mitigating Risks and Ensuring Compliance

Understanding and staying informed on evolving legal requirements surrounding biometric data collection is the first step for businesses. They also need a framework to operate legally.

Implementing Key Security Measures

Security is paramount to protecting any kind of personal data, particularly sensitive information like biometrics. Robust technical and organizational security measures are crucial. For instance, encrypting stored biometric data renders it unusable to malicious actors. Implementing strong access controls also restricts unauthorized individuals from accessing and manipulating this information. Organizations should also consider the potential need for breach notification in case of a data breach, as required by state laws.

Ensuring Explicit Consent: Transparency is Key

Before any data is collected, the first step is ensuring that you obtain explicit, informed, and freely given consent. Businesses need to clearly explain to individuals, be it employees or customers, how and why their biometric information will be used, ensuring that it’s for legitimate purposes. It’s important to have an easy-to-understand method for opting in. Ideally, businesses would document each step, retaining consent records as legal proof that the process followed ethical and legal guidelines. Giving individuals an easy way to opt out of the use of biometrics and have their data permanently erased, is equally crucial.

Minimizing Data Retention

Following the principle of “data minimization” ensures only collecting biometric data essential for a specific purpose. By minimizing retention, reducing storage duration, and securely erasing unused or obsolete data, companies not only comply with regulations like BIPA and GDPR but they significantly minimize risk. This approach reflects responsible data stewardship and aligns with the principles of data protection laws.

Staying Informed: Regular Review and Legal Guidance

Remaining proactive with your data security strategy is an ongoing process. This entails continually researching relevant regulations and industry best practices. To mitigate any risk of non-compliance and better understand evolving requirements and best practices, businesses must actively seek and obtain regular advice and counsel from privacy experts. It is crucial to always understand the legal implications of biometric data collection as regulations continue to change. Engaging legal professionals with expertise in this area ensures that businesses stay ahead of the curve, implement appropriate safeguards, and mitigate potential legal and reputational risks associated with the collection and use of biometric data.

Remember, embracing proactive measures helps organizations protect both individual rights and their reputation. Doing so ensures long-term growth and prosperity while avoiding costly legal issues, demonstrating a dedication to consumer and employee privacy.

FAQs About What Are the Legal Implications of Biometric Data Collection

What Are the Benefits of Using Biometrics?

Biometric technology can simplify user experiences. Biometrics can also streamline security and authentication. It allows organizations to implement highly effective identification measures across various operations, whether confirming employee attendance or authenticating mobile payments. There are many practical use cases across a range of industries and environments, but this raises the critical question of balancing its effectiveness with ethical data usage. You can find many online businesses, even retail stores that are using biometrics to make sales and provide better security for payments, just make sure that they obtain the correct legal permission from their customers. I’m starting to wonder what are the costs of running a franchise these days to know whether this kind of added expense will affect bottom lines?

What Laws Are There About Biometric Data?

Both the state and federal government have many laws in place. In addition to the widely referenced Illinois BIPA, Texas’ CUBI and Washington’s HB 1493 regulate how organizations handle biometrics. California’s CCPA, along with comprehensive laws in Colorado, Connecticut, Utah, and Virginia, expressly govern biometric information, demonstrating the expanding scope of legislation that covers the processing of biometric information. These laws typically address aspects such as consent requirements, data security measures, and permissible uses of biometric data. They aim to strike a balance between facilitating innovation and protecting individuals’ privacy rights in this rapidly evolving technological landscape.

What Are The Disadvantages of Biometric Data?

Even though biometrics offer numerous benefits, they carry significant potential for misuse or compromise, a crucial aspect of understanding the legal implications of biometric data collection. If organizations fail to maintain proper security and compliance, hackers can breach databases, stealing data to exploit, profit from, or potentially cause irreversible identity theft. The permanent nature of biometric data raises another concern. If this data is stolen, unlike changing passwords, it is far more challenging, and in some cases even impossible, to replace the stolen information. This highlights the importance of robust security measures to prevent unauthorized access and protect biometric data from falling into the wrong hands.

What Is A Case Where Biometrics Compromised Privacy?

Clearview AI, a facial recognition company, provides an unsettling real-world example. This U.S.-based company came under fire for assembling a vast facial recognition database from photos found online without individual consent. In 2020, a lawsuit filed by the ACLU against Clearview AI highlighted the concerning ramifications of biometric technology. It underscored how companies must treat personal data responsibly, particularly in a world of advanced surveillance technology. This case sparked debates about the ethical boundaries of collecting and using biometric data. It emphasized the need for greater transparency and accountability in how these technologies are developed and deployed.

Conclusion

In a digital world that’s growing increasingly dependent on instant identification and verification, biometric technologies continue to grow more commonplace. So, what are the legal implications of biometric data collection and what is their potential to create challenges? From securing transactions and facilities to personalized advertising, biometric data presents opportunities and challenges for any organization or government entity that uses this personal information. Because of its unique permanence, compared with replaceable identifiers like passwords, protecting it carries significant ethical and legal weight. At Warren and Migliaccio, we have touched on this sensitive aspect of the data, which remains relevant, not only within the United States but also on an international level. Organizations seeking to maximize the benefits of biometric data need to navigate this changing landscape by prioritizing individual privacy, legal compliance, and ethical data security standards.