United States: Copy-Cat Class Actions Meet Copy-Cat Legislation: Illinois' BIPA Spurs New Biometric Privacy Legislation Across The Nation

Seyfarth Synopsis: While most employers are likely familiar with the Illinois Biometric Information Privacy Act ("BIPA"), they should know that Illinois is not the only state with a biometric privacy law and many other states are not far behind from joining that group. In addition to states with existing biometric privacy laws (Illinois, Texas, and Washington), various state legislatures are considering similar (often-times identical) statutes. As a result, employers should take account of this patchwork quilt of laws in their compliance activities.

Since 2018, employers operating in Illinois have become well accustomed to recent flurry of class actions involving the Illinois Biometric Information Privacy Act ("BIPA"). Following the Illinois Supreme Court's decision in Rosenbach v. Six Flags Entertainment Corp., 2019 Ill. Lexis 7 (Ill. Jan. 25, 2019), there has been a sharp rise in cookie-cutter claims alleging violations of the BIPA with often no concrete injury even alleged. Though there are current legislative efforts that could potentially curtail the prevalence of lawsuits under the BIPA, Illinois employers should be aware that non-compliance could expose employers to potential damages of $1,000 or $5,000 for each employee relating to improper collection of biometric information or biometric identifiers.

However, employers in other states also should be aware that the BIPA-craze is not isolated to Illinois. Indeed, at least two other states have biometric privacy statutes on their books right now (Washington and Texas) and nearly a dozen more have considered implementing statutes like the BIPA. Though all of these statutes in some way prohibit the collection of biometric information and/or biometric identifiers, only some are like the BIPA in that they contain a private right of action and apply to the collection of biometric information or identifiers in an employment context.

In particular, employers in Alaska, Michigan, and New York (as well as employers based solely in New York City) should be aware that these respective legislative bodies are considering statutes nearly identical to the BIPA. Similarly, employers should monitor the current efforts to expand the private right of action in the California's Consumer Privacy Act ("CCPA"). Should the California legislature allow private individuals to sue for the violations of every one of the CCPA's various requirements, California could become the "new Illinois hotbed" in biometric privacy litigation.

Set forth below we have grouped each state's respective biometric privacy law based on whether it is: (1) current law; (2) signed, but not yet effective; (3) pending in the legislature; or (4) introduced in the legislature, but has since died.

Current Biometric Privacy Laws In Other States

Texas – The Texas Biometric Privacy Act prohibits the "capture" of biometric identifiers for a "commercial purpose" without notice and consent. The Act defines "biometric identifiers" as specifically "a retina or iris scan, fingerprint, voiceprint, or record of hand or face geometry." "Commercial purpose" is left undefined in the statute. The law does not define whether notice and consent must be done in writing. Only the attorney general can bring suit for violations of the Act. Each violation is subject to a civil penalty of up to $25,000.

Washington – Washington prohibits the collection and use of biometric identifiers for commercial purposes without notice and consent. Unlike Texas's law, Washington restricts the "enrollment" of biometric identifiers, which is defined as "capturing" a biometric identifier or "convert[ing] it into a reference template." The law does not define whether notice and consent must be done in writing. However, notice and consent provisions do not apply to data collected for "security purposes" (i.e. stored for "the purpose of preventing shoplifting, fraud, or any other misappropriation or theft of a thing of value"). The law does not have a private right of action to allow for suits by individual plaintiffs. Instead, only the Washington Attorney General can enforce the requirements.

Signed, But Not Yet Effective, Biometric Privacy Laws in Other States

Arkansas – On April 15, 2019, Governor Asa Hutchinson signed HB1943 and the bill goes into effect on July 23, 2019. The bill amends Arkansas' Personal Information Protection Act ("PIPA") by adding "biometric data" into the definition of "personal information" protected by the PIPA. "Biometric data" is defined as "fingerprints, faceprint, a retinal or iris scan, hand geometry, voiceprint analysis, DNA, or any other unique biological characteristics of an individual if the characteristics are used by the owner or licensee to uniquely authenticate the individual's identity when the individual accesses a system or account."

If a breach affects 1,000 or more individuals and the data owner is required to report the breach to individuals under the PIPA, then the data owner must disclose the security breach to the Arkansas Attorney General. Additionally, businesses that suffer a security breach must retain a copy of the written determination of the breach, as well as any supporting documentation, for five years from the date of determination of the breach. However, the determination and documentation are to remain confidential and are not subject to public disclosure. Crucially, the bill does not contain a private right of action.

California – On June 28, 2018, California passed the California Consumer Privacy Act ("CCPA") which will become effective January 1, 2020. "Biometric information" is included under the definition of "personal information" protected by the statute. Under the CCPA, biometric information is "an individual's physiological, biological or behavioral characteristics, including . . . iris, retina, fingerprint, face, hand, palm, vein patterns, and voice recordings, from which an identifier template, such as a faceprint, a minutiae template, or a voiceprint, can be extracted, and keystroke patterns or rhythms, gait patterns or rhythms, and sleep, health, or exercise data that contain identifying information."

The CCPA requires companies make certain disclosures to consumers via their privacy policies, or otherwise at the time the personal data is collected. As currently drafted, the CCPA has a limited private right of action which allows individuals to sue for statutory damages of $100 to $750 per violation if one's personal information is "subject to an unauthorized access and exfiltration, theft, or disclosure as a result of the business' violation of the duty to implement and maintain reasonable security procedures and practices appropriate to the nature of the information to protect the personal information." For all other violations, the CCPA provides that only the Attorney General may sue to recover civil penalties, with the recovery of those penalties to be earmarked for a new consumer privacy fund designed to offset the Attorney General's and courts' additional costs in enforcing the CCPA.

However, the state of the finalized CCPA is still in flux — particularly in two respects of utmost importance: (1) the expansiveness of the CCPA's private right of action; and (2) the CCPA's application to employers. Recently, an amendment providing for a sweeping private right of action failed to get out of committee. Additionally, another bill is pending that is seeking to exclude information relating to employees from the scope of the CCPA and seeks to narrow the definition of "consumer" to exclude employees.

We recommend keeping an eye on these two developments relating to the CCPA moving forward as they are crucial to employers' compliance efforts.

Pending Biometric Privacy Laws in Other States

Alaska – Alaska's biometric privacy bill, H.B. 72 mirrors the BIPA in providing a private right of action and statutory damages of between $1,000 and $5,000 depending on the type of violation. H.B. 72 also requires employers to provide individuals notice of the collecting entity's biometric privacy practices and obtain written consent. Unlike the BIPA, however, H.B. 72 does not explicitly allow employers to make consent to the collection of biometric information a condition of employment. The bill has been pending since 2017, however, and it still remains in committee.

Arizona – On January 22, 2019, HB 2478 was introduced in Arizona's legislature. HB 2478 does not include a private right of action, however, the bill would prohibit businesses from capturing, converting, or storing an individual's biometric identifier in a database for a "commercial purpose" unless (1) it provides "a mechanism to prevent the subsequent use of a biometric identifier for a commercial purpose; or (2) advance notice [is] provided and consent [is] obtained from the individual."

Massachusetts – Massachusetts' proposed legislation, Bill SD.341, "an Act relative to consumer data privacy," is still in committee. However, employers should be aware that this bill as currently written does not apply to "business[es] collecting or disclosing personal information of the business's employees so long as the business is collecting or disclosing such information within the scope of its role as an employer."

Michigan – Michigan's biometric privacy law, House Bill No. 5019, is still in committee after being introduced in September 2017. The text of the bill is nearly identical to the BIPA, and includes a private right of action.

New Hampshire – Though a BIPA-like law has not been introduced since 2017, there have been more recent attempts at prohibiting the collection of biometric information. This year, HB 536 was introduced seeking to add two new provisions to New Hampshire's Consumer Protection Act making it unlawful to "Obtain[], us[e], disclos[e], or retain[] biometric information about an individual with whom the person is engaged in trade or commerce for any purpose other than that which the individual reasonably expects." If the amendment is successful, such a provision can only be enforced by New Hampshire's Consumer Protection and Antitrust Bureau.

New York – New York has two different biometric privacy bills pending in their legislature. On January 11, 2019, NY SB 1203 was introduced for the third time in just as many years. Like the bill pending in Michigan, the text of the New York bill is nearly identical to the BIPA, and includes a private right of action.

Another bill, S5642, is similar to California's Consumer Privacy Act, though it's private right of action allows individuals to bring suit for unlawful disclosure of biometric information as well as the unlawful collection of biometric information. Unlike California's law, however, S5642 does not apply to the collection of personal information in the employment context. "Consumer" as defined in the bill "does not include an employee or contractor of a business acting in their role as an employee or contractor."

New York City – On October 17, 2018, Bill Int. No. 1170 was introduced seeking to amend Section 1, Chapter 5 of Title 20 of the Administrative Code of the City of New York. While the bill contains some similar provisions to the BIPA, including a private right of action, and avoids the statutory standing issues by providing that "any person who[se] biometric identifier information was collected, retained, converted, stored or shared in violation of [the law] may commence an action," the bill as written only applies to the collection of biometric identifier information of "customers" defined as "a purchaser or lessee, or a prospective purchaser or lessee, of goods or services from a commercial establishment." The bill has yet to be presented before a committee.

Introduced Biometric Privacy Laws In Other States Which Did Not Pass

Delaware Delaware's biometric privacy bill, DE HB350, was introduced in March 2018 and remains pending. Though individuals must be provided notice and give consent prior to the collection of their biometric information, unlike the BIPA, the law does not mandate consent be in writing. The bill as written may only be enforced by the Delaware Consumer Protection Unit. As of this writing, the bill is dead.

Florida – On March 5, 2019, the "Florida Biometric Information Privacy Act" (SB 1270) was introduced in the Florida legislature. The statute generally follows the text of the BIPA regarding notice and consent requirements, a private right of action and the availability of statutory damages. As of the date of publication, the bill has died in committee.

Montana – Montana has actually had two failed attempts at passing BIPA-like legislation. On February 17, 2017, the "Montana Biometric Information Privacy Act" (HB 518) was introduced in the Montana legislature. Like the BIPA, HB 518 requires written notice and consent before biometric data or information may be collected and also provides for a private right of action. However, the bill has died in committee. On March 1, 2018, an act of the same name was introduced as HB 645 with the private right of action removed and leaving enforcement to the state's attorney general. This too died in committee.

New Hampshire – New Hampshire last considered a BIPA-like law in 2017 following the introduction of HB 523. The bill is similar to the BIPA in its notice and consent requirements. However, the bill made it unlawful to refuse to employ someone who declined to consent to the collection of their biometric information. Nevertheless, the bill, died in committee.

Best Practices For Compliance

Though many of these statutes have not made it passed committee, much less passed, it is still important to get ahead while it is costs far less than the potential class action lawsuit. Accordingly, it is critical for employers in these jurisdictions to:

  • Have a written policy relating to the collection, storage, and retention of biometric information stating the business's retention schedule for the data and the rules governing its destruction;
  • Obtain written consent from employees who are using technologies that collect or capture biometric information;
  • Take steps ensure that neither the company nor any vendor storing biometric data on the company's behalf sells or discloses the data;
  • Implement security protocols for the protection of biometric data; and
  • Have appropriate provisions in vendor contracts ensuring they comply with existing laws and that the company may retain the right to request information and have the right to be notified in the event of a suspected breach.

Compliance is key, and there no better time to think about your company's biometric privacy compliance than right now.

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.

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