United States: The Future Is In Our Hands: Biometric Identification As Authentication

Last Updated: January 25 2016
Article by John Morgan

Would you dig a moat to protect your house from burglars? Of course not. Why, then, do we use similarly archaic means like the alphanumeric identifier and the password to protect our electronic data?

Change is coming, however. A number of intrepid companies are now making use of technological advances in biometric identification—unique physical attributes such as fingerprints, facial structure and iris scans—as an alternative or added layer of authentication and fraud prevention. While public sentiment surrounding the use of biometric identification as a means of security authentication appears to be shifting from stark skepticism to cautious acceptance, companies need to be aware of the privacy concerns and new potential theories of liability they will face when establishing biometric identification programs.

Given the limited use of such programs in the United States to date, it is instructive to look to India, where the Unique Identification Authority of India (UIDAI) is home to the largest biometric identification program ever assembled, with biometric information for more than 940 million individuals. India's foray into biometric identification began in 2009 with the creation of UIDAI, whose goal is to provide every Indian resident with a biometrically secured form of identification known as "Aadhaar." UIDAI collects fingerprint, iris and demographic data, along with a photograph for each applicant, and correlates that information with a 12-digit identification number that can be used as universal proof of identity for a range of public or private services, from obtaining social assistance funds to opening a bank account. Each applicant's information is stored in a centralized database that allows for real-time biometric authentication in the event an Aadhaar number requires confirmation.

As the project progresses, it promises to provide all Indian residents with digital, easily verifiable and – most importantly – universal identification. Identification is especially valuable to India's lower-income population, most of whom do not have other reliable means to confirm their identities, which could delay and/or preclude access to government assistance programs and prevent use of private sector services such as banking.

As promising and ambitious as the Aadhaar project is, questions regarding individuals' privacy rights and security of the information provided to UIDAI loom large over the project. UIDAI's critics raise concerns about the potential for misuse of enrollee's biometric information, as well as the inevitable threats of hacking and data theft. With so many accounts and services tied to a single unique identifier, Aadhaar may unintentionally serve as a gateway to increased state surveillance.

In addition, the sensitivity of the biometric information and centralized Aadhaar database mean Aadhaar could become a prime target for hackers and identity thieves. The July 2015 breach affecting the U.S. Office of Personnel Management, which resulted in the suspected theft of 5.6 million government workers' fingerprints, shows how attractive such information can be.

Biometric identification's greatest strength also has the potential to be its greatest weakness. While intrinsic physiological characteristics—like fingerprints and iris scans—are unique and more difficult to forge than a username and password combination, these same traits can make biometric information difficult to replace in the event of theft. Obviously, an eye or a fingerprint cannot be replaced as easily as a password. To achieve long-term viability, UIDAI will need to ensure that the biometric information it collects is subject to strict information security protocols in order to minimize the risk of unauthorized access.

Yet despite the unique, sensitive nature of biometric information and the vast scope of the program, India has not yet passed comprehensive privacy legislation governing the protection and permitted use of data collected in connection with the Aadhaar program. Similarly, limited regulations govern the protection and use of biometric information in the United States. As of January 1, 2016, only seven states – Connecticut, Iowa, Nebraska, North Carolina, Oregon, Wisconsin and Wyoming—consider biometric information to be "personally identifiable information" that would trigger a private entity's notification obligation in the event of a breach. Just three states—Connecticut, Oregon and Wyoming – enacted legislation to expand the definition to include biometric information this year. Accordingly, a breach of highly sensitive, unique biometric information could occur, but a company would have no legal obligation to notify the individual that their information had been compromised.

Only two states (Texas and Illinois) have laws specifically regulating the collection and use of biometric information by private companies outside the education industry. The Illinois Biometric Information Privacy Act, 740 ILCS 14 et seq. (BIPA) provides that a private entity must notify an individual and obtain consent to collect, capture, purchase or otherwise obtain a person's biometric identifier or biometric information. BIPA also prohibits the sale, lease, trade or profiting from a person's biometric identifier or biometric information, without exception, and requires that a business in possession of biometric data develop a written policy concerning biometric data retention and deletion. BIPA provides a private right of action, and recovery of liquidated damages in the amount of $1,000 per negligent violation, and $5,000 per intentional or reckless violation of BIPA.

Meanwhile, the Texas Business and Commercial Code Annotated, §503.001, Texas' biometric protection law, contains some of the same protections as BIPA, but does not contain the same requirements that notice and consent need to be in writing, nor does it require the disclosure of the reasons for collecting biometric information and how long the information will be stored. The Texas Code also provides that a party may sell, lease or disclose biometric identifiers in certain limited circumstances. The Texas Code provides a penalty cap of $25,000 per violation, and permits the Texas attorney general to bring a civil action to collect that penalty rather than a private right of action.

With liquidated damages per violation, BIPA has become a popular tool over the last year for consumer class action attorneys. Facebook and Shutterfly have been sued in Illinois for alleged violations of BIPA for the purported unauthorized creation, collection and storage of users' facial geometry, a form of biometric information, without consent. Additional actions are likely to follow as more companies—like MasterCard and Deutsche Bank, two companies that have recently announced they are (or are considering) implementing biometric identification programs—enter this domain.

As individual states begin to adopt standards concerning the use and disclosure of biometric information, companies that maintain biometric identification programs will need to keep up with the changing regulatory landscape in much the same way that companies have navigated evolving privacy and breach notification standards over the last 12 years. At the same time, legislation requiring the protection of biometric information and dictating the permitted uses of that information could lead to increased use of biometric identification programs. Companies would have clear guidelines to follow when implementing biometric identification programs, and consumers would know how their information was being used and protected, instilling greater confidence in providing such information for use in such programs. Lastly, companies should seize the opportunity to partner with government and global experts in privacy law and risk management to become leaders in in the adoption of biometric identification.

First published by Law Practice Today. Co-authored by Marcello Antonucci, Beazley Group

The Future Is In Our Hands: Biometric Identification As Authentication

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must 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