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National Biometric Information Privacy Act, Proposed by Sens. Jeff Merkley and Bernie Sanders

Whether it is facial recognition technology being used in connection with COVID-19 screening tools and in law enforcement, continued use of fingerprint-based time management systems, or the use of various biometric identifiers for physical security and access management, applications involving biometric identifiers and information in the public and private sectors continue to grow. Concerns about the privacy and security of that information continue to grow as well. Several states have laws protecting biometric information in one form or another, chief among them Illinois, but the desire for federal legislation remains.

Modeled after Illinois’s Biometric Information Privacy (BIPA), the National Biometric Information Privacy Act (Act), proposed by Sens. Jeff Merkley and Bernie Sanders, contains three key provisions:

  • A requirement to obtain consent from individual prior to collecting and disclosing their biometric identifiers and information.

  • A private right of action against entities covered by the Act that violate its protections which entitles aggrieved individuals to recover, among other things, the greater of (i) $1,000 in liquidated damages or (ii) actual damages, for negligent violations of the protections granted under the law.

  • An obligation to safeguard biometric identifier or biometric information in a manner similar to how the organization safeguards other confidential and sensitive information, such as Social Security numbers.

The Act would apply to “private entities,” generally including a business of any size in possession of biometric identifiers or biometric information of any individual. Federal, state, and local government agencies and academic institutions are excluded from the Act.

Under the Act, private entities would be required to:

  • Develop and make available to the public a written policy establishing a retention schedule and guidelines for permanently destroying biometric identifiers and biometric information. That schedule may not extend one year beyond an individual’s last interaction with the entity, but destruction could be required earlier;

  • Collect biometric identifiers or biometric information only when needed to provide a service to the individuals or have another valid business reason;

  • Inform individuals their biometric identifiers or biometric information is being collected or stored, along with the purpose and length of the collection, storage, or use, and must receive a written release from individuals which may not be combined with other consents, including an employment agreement;

  • Obtain a written release immediately prior to the disclosure of any biometric identifier or biometric information that includes the data to be disclosed, the reason for the disclosure, and the recipients of the data; and

  • Maintain the information using a reasonable standard of care.

Readers familiar with the BIPA in Illinois will find these requirements familiar. Readers familiar with the California Consumer Privacy Act (CCPA) will find the following “Right to Know” familiar as well. The Act would grant individuals the right to request certain information about biometric identifiers or biometric information collected by a covered entity within the preceding 12-month period. This information includes “specific pieces of personal information” and “the categories of third parties with whom the business shares the personal information.” The Act uses “personal information” but does not define it, leaving it unclear if it pertains only to biometric identifiers and biometric information.

Most troubling is the private right of action provision referenced above. The Act uses language similar to the language in the BIPA, which has led to a flood of class action litigation, including a decision by the IL Supreme Court finding plaintiffs need not show actual harm to recover under the law. The legislative process likely will result in some modification to the law, assuming it even survives, a fate privacy laws tend to have at the federal level. Nonetheless, we will continue to monitor the track of this and similar laws.

Jackson Lewis P.C. © 2020National Law Review, Volume X, Number 218

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About this Author

Principal

Joseph J. Lazzarotti is a Principal in the Morristown, New Jersey, office of Jackson Lewis P.C. He founded and currently helps to co-lead the firm's Privacy, e-Communication and Data Security Practice, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the International Association of Privacy Professionals.

In short, his practice focuses on the matrix of laws governing the privacy, security and management of data, as well as the impact and regulation of social media. He also...

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