A Host of Biometric Privacy/Facial Recognition Bills Currently Circulating in State Legislatures

by Proskauer - New Media & Technology

We’ve written extensively about the numerous lawsuits, dismissals and settlements surrounding the Illinois Biometric Information Privacy Act (BIPA). The statute, generally speaking, prohibits an entity from collecting, capturing, purchasing, or otherwise obtaining a person’s “biometric identifier” or “biometric information,” unless it satisfies certain notice and consent and data retention requirements. The statute contains defined terms and limitations, and parties in ongoing suits are currently litigating what “biometric identifiers” and “biometric information” mean under the statute and whether the collection of facial templates from uploaded photographs using sophisticated facial recognition technology fits within the ambit of the statute. Moreover, in two instances in the past six months, a district court has dismissed a lawsuit alleging procedural and technical violations of the Illinois biometric privacy statute for lack of Article III standing.

Thus, the epicenter of biometric privacy compliance and litigation has been the Illinois statute. A Texas biometric statute offers similar protections, but does not contain a private right of action.

The biometrics landscape may be about to get more complicated. An amendment has been proposed to the Illinois biometric privacy, and a number of biometric privacy bills mostly resembling BIPA have been introduced in other state legislatures. While most of the new proposed statutes are roughly consistent with the Illinois statute, as noted below, the Washington state proposal is, in many ways, very different. If any or all of these bills are enacted, they will further shape and define the legal landscape for biometrics.

These bills include:

  • Alaska (HB 72): Similar to BIPA, the Alaska bill prohibits the collection of an individual’s biometric data for use in a biometric system without proper notice and consent, requires timely disposal after the data is no longer needed, and provides for a private right of action. The bill is currently in committee.
  • Connecticut (Proposed HB 5522): This proposed House bill would aim to prohibit retailers from using facial recognition software for marketing purposes. It should be noted that the same legislator had introduced a bill in 2016 that failed to achieve passage and would have prohibited capture and use of a biometric identifier for commercial purposes without notice and consent. The 2017 bill was referred to committee.
  • Illinois (HB 2411):  This bill would amend BIPA and provide that except to the extent necessary for an employer to conduct background checks or implement security protocols, a private entity could not require a person or customer to provide a biometric identifier or biometric information as a condition for the provision of goods or services.  The text states that such amendment would not apply to companies that provide medical services, law enforcement agencies or governmental agencies.  The bill has been assigned to committee.
  • Montana (HB 518): The bill would establish the Montana Biometric Information Privacy Act, prohibiting a private entity from collecting, storing, and using a person’s biometric data without a person’s consent and establishing procedures for the sale, disclosure, protection, and disposal of biometric information. The bill provides for a private right of action. HB 518 is currently in committee.
  • New Hampshire (HB 523): As with BIPA, the bill would regulate the collection, retention, and use of biometric information by individuals and private entities. The bill grants any person aggrieved by a violation a private right of action. The bill is currently in committee.
  • Washington (HB 1493-S): The bill states that its intended purpose is to require a business that collects and can attribute biometric data to a specific individual to provide notice and obtain consent from an individual before enrolling or changing the use of an individual’s biometric identifiers in a database. However, the current text contains several limitations that make it distinguishable from BIPA and soften its overall effect.  For example, the bill places an exception to any notice and consent requirements when biometric data is collected and stored “in furtherance of a security purpose” (which is defined as protecting against shoplifting, fraud or otherwise “protecting the security or integrity of software, accounts, applications, online services, or any person”).  The bill also provides that the prohibitions on disclosure and retention of biometric identifiers do not apply to disclosure or retention of biometric identifiers “that have been unenrolled” (a term that suggests removal of biometric template data linked to a specific individual from a database, perhaps a reference to anonymous, de-identified biometric data, though a complete interpretation would have to wait for the final statutory text).  In addition, and most importantly, the bill would not provide a private right of action, as a material violation would be deemed an unfair or deceptive business practice under the state consumer protection law, enforced solely by the attorney general.  The bill is pending in the House Rules Committee.

In addition, a number of states, such as Arizona and Missouri, have pending bills with respect to student privacy that contain limitations on the collection of student biometric data without parental consent.

While it is still early in the legislative process, companies that offer online or mobile services that involve the collection of covered biometric information should be aware of the proposed biometric privacy legislation being debated in a handful of statehouses. Depending on whether any of the bills are passed, entities may have to consider changes to their notice and consent practices, or decide to not collect or store biometric data at all. Moreover, while we are closely watching the current Facebook biometric privacy litigation in California, new state laws, even ones premised on BIPA, may present different legal considerations or restrictions depending on how the final statutory text differs from the Illinois law.

We will continue to closely watch legislative and other developments surrounding biometric privacy.

[View source.]

Written by:

Proskauer - New Media & Technology

Proskauer - New Media & Technology on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.