August 11, 2020

Volume X, Number 224

August 11, 2020

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August 10, 2020

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Massachusetts State Senators Seek to Enact Biometric Data Protection Law

The rise of Big Data and the development of tools to interpret massive data sets to better understand consumer behavior have led to booming demand for consumers’ personal information.  Technological advances have also made biometric data, such as fingerprints and facial features, useful security tools for electronic devices. The growing use of Big Data and biometric data has caused some concern among consumers and policymakers.  In response, several state legislatures have taken steps to regulate companies’ ability to acquire personal and biometric data.

In Massachusetts, for instance, four state senators introduced a bill (S.D 341) in late January that would require companies to refrain from collecting personal and biometric data absent express consent from the affected consumer.  Under the proposal, consumers could request a copy of their personal data that has been collected, restrict disclosure of their data to third parties, and even require the business to delete their data.  The bill also contemplates granting consumers a private right of action to obtain the greater of actual damages or $750 per incident, injunctive or declaratory relief, and reasonable attorneys’ fees.  Notably, the bill would expressly confer standing to sue regardless of whether the unauthorized biometric data collected caused actual harm.

Massachusetts is not the first state to consider such a law. Illinois, for example, enacted the Biometric Information Privacy Act (“BIPA”) in 2008. Under the BIPA, companies are required to notify a consumer before they collect biometric data.  It also mandates companies to take reasonable care in safeguarding such data, limits retention of such data to the purpose for which it was collected, and restricts the sale and disclosure of biometric data.  The BIPA grants consumers a private right of action. 

Texas and Washington have also enacted laws governing the collection of biometric data, but those state’s laws do not provide for a private right of action. Other states in addition to Massachusetts—such as New York, North Carolina, and Wisconsin—have implemented data breach notification requirements, but those states have not yet regulated the collection of biometric data. As collection of personal and biometric data becomes more important to a variety of industries, those industries should anticipate the states, and, potentially, Congress will enact laws similar to BIPA or the proposed SD 341.

Copyright 2020 K & L GatesNational Law Review, Volume IX, Number 42


About this Author

Andrew Glass, KL Gates Law Firm, Financial Litigation Attorney

Mr. Glass is a partner resident in K&L Gates’ Boston office, and a member of the firm's Consumer Financial Services Litigation and Class Action Litigation Defense groups, with extensive experience in complex commercial litigation. Mr. Glass's practice focuses on the defense of federal and state class action litigation brought against consumer financial services, mortgage lending, and consumer credit institutions. These class actions concern challenges under federal statutes, including the Fair Housing Act, Equal Credit Opportunity Act, Fair Credit Reporting Act, Real...

Gregory Blace, KL Gates Law Firm, Class Action Litigation Attorney

Mr. Blase is a partner in the Boston office of K&L Gates where he is a member of the firm's Class Action Litigation Defense group. Mr. Blase has experience in complex commercial litigation, and has represented mortgage lenders, servicers and other financial institutions in class action and individual suits under the Telephone Consumer Protection Act, Fair Credit Reporting Act, Fair Debt Collection Practices Act, Truth in Lending Act, Fair Housing Act, Equal Credit Opportunity Act, Real Estate Settlement Procedures Act, and various state unfair and deceptive practices statutes.

Daniel Cohen, KL Gates Law Firm, Washington DC, Finance Law Attorney

Daniel Cohen is a first year associate in the Washington, D.C. office.

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