May 21, 2018

May 21, 2018

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May 18, 2018

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Biometric Breakdown Part II – Collection

Continuing our series, we look today at what a company should think about when collecting biometric data. Three U.S. states—IllinoisTexas, and Washington—have laws on-point. The Illinois statute is the most specific requiring written notice disclosing the purpose of collection and the length of time biometric information will be stored. It also requires companies to obtain each individual’s written consent. Texas requires companies to inform individuals of collection and obtain consent, but neither must be written. In Washington, companies may either give notice, obtain consent, or “prevent the subsequent use of a biometric identifier for a commercial purpose.” Companies in compliance with the Illinois law would also satisfy the other states’ less specific requirements.

The Illinois statute provides a private right of action, and dozens of class action complaints against companies have recently been filed alleging inadequate notice and/or a failure to obtain written consent before collection. As we have written previously, many of these relate to employers’ collection of fingerprints for time tracking systems.

Putting it Into Practice: Companies that collect biometric information should look at their collection practices and assess if notice and consent is needed and sufficient.

Copyright © 2018, Sheppard Mullin Richter & Hampton LLP.

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About this Author

Liisa Thomas, Sheppard Mullin Law Firm, Chicago, Cybersecurity Law Attorney
Partner

Liisa Thomas, a partner based in the firm’s Chicago and London offices, is Co-Chair of the Privacy and Cybersecurity Practice. Her clients rely on her ability to create clarity in a sea of confusing legal requirements and describe her as “extremely responsive, while providing thoughtful legal analysis combined with real world practical advice.” Liisa is the author of the definitive treatise on data breach, Thomas on Data Breach: A Practical Guide to Handling Worldwide Data Breach Notification, which has been described as “a no-nonsense roadmap for in-house and...

312-499-6335
Shanna Pearce, Sheppard Mullin, San Diego, litigation, class action, intellectual property, IP, copyrights, false advertising, commercial litigation, lanham act, unfair competition
Associate

Ms. Pearce represents businesses in the areas of intellectual property and commercial litigation, from trademark and copyright matters to consumer class actions. She has represented Fortune 500 companies in complex actions involving allegations of copyright violation, breach of contract, fraud, and unfair business practices. She has also defended retailers and financial institutions in class actions alleging violations of statute and federal laws relating to false advertising, unfair competition, pricing practices, and lending disclosures. Ms. Pearce’s litigation experience ranges from pre-suit strategy and advice to post-trial proceedings, with a special focus on appellate issues. She also has significant experience in private domestic and international arbitrations.

Ms. Pearce co-chairs the Bench-Bar Committee of Lawyers Club of San Diego, and is an active member of both the San Diego County Bar Association Appellate Section and the San Diego Appellate Inn of Court. She is a member of Sheppard Mullin’s own Pro Bono Committee and coordinates pro bono training and case placement in the Del Mar office. Ms. Pearce’s pro bono practice focuses on asylum and other immigration matters for victims of persecution, torture, and domestic violence.

858-720-7475