Recent innovations in smart devices have introduced the use of biometric data into consumers’ everyday lives. The term “biometric data” refers to digital data used during a biometric identification process such as fingerprint recognition. A biometric process is defined as verification of a person’s identity through the use of that person’s biological traits (e.g., fingerprints, eye retinas or irises, voice patterns, DNA, etc.). In the past, the use of biometric data as identification was often only seen in spy movies, but today the use of biometric process has become prevalent and widespread thanks to its integration into smartphones. Today, millions of smartphone users utilize biometric processes to unlock their phones and sometimes even to purchase goods or services.

Despite this widespread integration of biometric process, however, few laws in the United States govern the privacy of how this data is stored, used, and protected. Currently, only three states in the United States (Illinois, Washington, Texas), have any laws regarding the use of biometric data, and only four other states (Alaska, Connecticut, Montana, New Hampshire) have legislation pending.

Illinois has the oldest biometric privacy law. Entitled the “Biometric Information Privacy Act,” the Illinois law requires that companies that intend to use biometric data must first obtain the person’s consent. Although the law has been on the books since 2008, 2015 saw an uptick in the number of lawsuits filed under the law. And this year, an Illinois court allowed a class action against Google to proceed.

In response to the increase of biometric privacy laws, technology companies have begun pushing back against the passing of such laws. Perhaps, bowing under such pressure, Washington’s law, the newest state to pass a biometric privacy law, passed their law with very limited restrictions on the use of biometric data. The law also provided exemptions for certain data that was already available or online. Likewise, eight other states that considered passing biometric privacy laws ended up abandoning the legislation under opposing pressure from large interest groups. Washington statesmen acknowledge that, in passing their biometric privacy law, they tried to balance the interest of the many technology companies headquartered in Washington against those of the private consumer.

Notably, Texas’s biometric privacy law does not even allow for private causes of action. Instead, it only allows for the attorney general to bring such suits under its Act. And while Illinois has seen an uptick in the number of lawsuits filed under its privacy law, industry lobbyists that represent technology giants such as Google, Amazon, and Facebook have made considerable ground in convincing many statesmen that biometric privacy laws may impede technological progress.

Currently, the United States government has stated that any federal guidelines for biometric privacy will be passed by the Federal Trade Commission, but no clear date for any publication has been given. As such, states will continue to fill the void with their own legislation. As each state varies in terms of what interests they have when balancing consumer interest against industry, it would behoove legal counsel to closely follow the legislative debates and lobbying movement of technology companies in their own states. By doing so, intellectual property counsel can best advise their clients on how to utilize, protect, and manage any biometric data they use, give, or transfer under state law.

See related content:

http://www.klemchuk.com/states-lead-the-charge-in-protecting-internet-privacy/

For more information on this topic, please visit our data privacy and cybersecurity service pages, which are part of our Technology & Data Practice.

Klemchuk LLP is an Intellectual Property (IP), Litigation, Technology, Internet, and Business law firm located in Dallas, TX.  The firm offers comprehensive legal services including litigation and enforcement of all forms of IP as well as registration and licensing of patents, trademarks, trade dress, and copyrights.  The firm also provides a wide range of technology, Internet, e-commerce, and business services including business planning, formation, and financing, mergers and acquisitions, business litigation, data privacy, and domain name dispute resolution.  Additional information about the Internet & eCommerce law firm and its Internet & eCommerce attorneys may be found at www.klemchuk.com.

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