United States: Six Things You Need To Know Before Collecting Biometric Information

1. Illinois and Texas recently enacted laws regulating the collection and use of biometric information (e., information based on an individual's biometric identifiers, such as iris scans, fingerprints, voiceprints, or facial geometry) and a number of other states, including New York and California, are considering adopting such statutes. The Illinois Biometric Information Privacy Act ("BIPA") permits private rights of action and provides for statutory damages ranging from $1,000 to $5,000 per violation. The Texas analog, entitled Capture or Use of Biometric Identifier ("CUBI"), is enforceable only by the state attorney general and permits civil penalties up to $25,000 per violation.

2. Under both the BIPA and CUBI, "biometric information" is keyed to "biometric identifiers," which include (i) retina and iris scans, (ii) fingerprints, (iii) voiceprints, (iv) hand geometry and (v) face geometry. While the CUBI applies solely to biometric identifiers captured for "commercial purposes," the BIPA contains no such limitation, and applies broadly to all non-governmental entities.

The BIPA exempts a number of biometric identifiers from the statute, while the CUBI contains no specific exemptions. Specifically, the BIPA exempts: (i) writing samples/signatures, (ii) photographs, (iii) biological samples used for testing, (iv) demographic data, (v) tattoos, (vi) physical characteristics, (vii) information gathered in a healthcare setting, (viii) information used for healthcare treatment, (ix) medical tests conducted to treat a medical condition, and (x) information derived from the above.

3. The BIPA contains six key requirements for any private entity in possession of or collecting biometric data:

  1. Develop a written policy, available to the public, establishing a retention schedule and guidelines for destruction;
  2. Destroy biometric data when the initial purpose for obtaining/collecting such data has been fulfilled, or within three years of the person's last interaction with the entity, whichever is sooner;
  3. Biometric data cannot be collected or otherwise obtained without prior written consent based on a disclosure to an individual that biometric data is being collected and the length of time for which the data is collected;
  4. Biometric data cannot be sold;
  5. Biometric data cannot be disclosed unless (a) consent is obtained, (b) disclosure is necessary to complete a financial transactions requested or authorized by the subject, (c) disclosure is required by law or (d) disclosure is required by subpoena; and
  6. Biometric data must be stored using a reasonable standard of care for the entity's industry and in a manner that is the same or exceeds the standards used to protect other confidential information.

The CUBI contains four key requirements for collecting biometric data:

  1. Biometric data may not be collected absent informed consent;
  2. Biometric data may not be sold or otherwise disclosed absent (a) consent for purposes of identification in cases of disappearance or death, (b) to complete a financial transaction that the individual requested or authorized or (c) disclosure is required by law or by law enforcement pursuant to a warrant;
  3. Biometric data must be protected using reasonable care and in a manner that is the same as or exceeds that in which other confidential information is protected; and
  4. Biometric data must be destroyed no later than (with few exceptions) one year from the date on which the purpose for collecting the data ends.

4. Over the last year, more than a half dozen class action lawsuits have been filed under the BIPA. Google, Shutterfly and a handful of social media companies have each been sued over the alleged use of facial geometry recognition software used for photo tagging. Palm Beach Tan and LA Tan were each sued over the alleged use of fingerprint data to act as a membership card, and Smarte Carte was sued over the alleged use of fingerprint security technology to lock and unlock lockers. Daycare company Crème de la Crème was sued recently over the alleged use of fingerprint technology to ensure the secure pickup of children.

5. Thus far, motions to dismiss BIPA class actions at the pleading stage have been unsuccessful, but a number of arguments remain untested. Google has moved to dismiss its case on the basis that the Dormant Commerce Clause prohibits the application of the BIPA in the context of photo websites. Google argues that companies across the country are effectively required to comply with the BIPA as they cannot determine at the outset whether or not an individual in a given photograph is an Illinois resident. In addition, the Supreme Court's recent decision in Spokeo, Inc. v. Robins calls into question whether individuals have Article III standing to pursue technical BIPA violations (e., the absent of a written policy), notwithstanding statutory damages.

6. Expect the growth in BIPA class actions to continue. Not only will use of biometric data by tech and other companies continue to grow as new services and product offerings come online, but the variety of defendants already facing BIPA claims – including the recent lawsuit against the Crème de la Crème daycare company – suggests that plaintiffs' counsel have broadened their focus from the tech industry and may assert claims against employers, childcare facilities, healthcare companies and the financial services industry. Whether it is businesses protecting trade secrets through fingerprint access, childcare facilities using fingerprint technology for secure child pickup, health insurers collecting biometrics outside of the treatment setting or banks using fingerprints for account access, the list of possible defendants is extensive.

Given the threat of staggering statutory damages, companies across all industries cannot afford to ignore laws regulating the use of biometric information. Given the novelty of the issues and the potential for statutory damages, there is sure to be an influx of litigation under such statutes in the coming years. Companies must therefore carefully evaluate the types of biometric information they collect and their policies for use and retention of such data, even if they do not collect it directly.

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.

Events from this Firm
24 Oct 2017, Seminar, Los Angeles, United States

Presented by The American Bar Association White Collar Crime Committee.

24 Oct 2017, Conference, Los Angeles, United States

Corporate transactions are not just in the domain of M&A corporate attorneys. This program will cover the important role of employment and benefits counsel in shaping mergers and acquisitions. The presenters will provide practical guidance on conducting due diligence of labor, employment, employee benefits and executive compensation arrangements of target companies.

25 Oct 2017, Business Breakfast, New York, United States

Please join us for a complimentary breakfast program and networking with private equity investment banking professionals to discuss private equity activity and prospective deal flow opportunities in the technology industry.

In association with
Related Video
Up-coming Events Search
Font Size:
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
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.