United States: Cybersecurity 2018 – The Year In Preview: Biometrics

Last Updated: December 12 2017
Article by James Fullmer

Editors' Note: This is the fifth in a multi-part end-of-year series examining important trends in data privacy and cybersecurity during the coming year. Previous installments include analyses of HIPAA compliance, emerging security threats, federal enforcement trends, and state enforcement trends. Up next: Education.

The term "biometrics" may conjure up images of Gattaca or Minority Report, but the use of unique biological attributes for identification purposes is nothing new. Something as familiar as fingerprinting, for example, is a form of biometric identification. Even Inspector Lestrade knew enough to tell Sherlock Holmes that "no two thumb-marks are alike." And biometrics have long been used by the federal government to, for example, facilitate oversight of immigration, trade and travel, among others.

But as biometric technology evolves and becomes more common in the private sector, the use of such technology raises exciting new possibilities, as well as privacy concerns. Consider a series of lawsuits that have arisen in Illinois over the past year: In several similar cases, employees allege that their employers have violated the Illinois Biometric Information Privacy Act through their use of a fingerprint-based clock-in system. In another case, customers are suing a restaurant with an automated kiosk with facial recognition technology that allows the kiosk to remember the customer for future purposes.

Clocking in for work and being recognized at a restaurant are nothing new, but the addition of biometrics affects privacy in several ways. The biometric information must be collected, which may concern unwilling employees or patrons—and which could theoretically happen without the knowledge or consent of a person in a system where information is gathered surreptitiously. Biometric information must also be stored—the system needs a database with which to compare the collected information. As numerous recent data breaches have reminded us, what is stored can be stolen. What is stored can also, of course, be sold for marketing purposes.

So far, Illinois is the center of biometrics privacy litigation, thanks to its strongest-in-the-nation law regulating the use of biometrics. The Illinois Biometric Information Privacy Act, passed in 2008, imposes requirements with respect to the retention, collection, disclosure, and destruction of biometric information. Only two other states, Texas and Washington, currently have biometric-specific privacy laws in force, each of which for its own reasons has not had quite the impact of the Illinois law. (Note that some states, through their criminal laws, already protect biometric data against identity theft.)

2018 may bring big new developments, however. For one thing, look for courts to rule on the application of the Illinois law to parties located outside of Illinois. For another, a fourth state has passed a law containing biometrics privacy protections, set to go into effect in April. With various pieces of biometric-related legislation pending across the country, it's a good bet that other states–and perhaps the federal government–will follow suit in the coming year.

Application of the Illinois BIPA to Out-of-State Entities

Last September, in an ongoing case in the United States District Court for the Northern District of Illinois, a California-based photo sharing company accused by a Florida man of violating the Illinois BIPA through its facial recognition technology lost its bid to get the case dismissed. That bid was based in part on the argument that BIPA does not apply extraterritorially. The plaintiff conceded that BIPA does not apply extraterritorially but argued that the upload of his photo in Illinois, by an Illinois resident, meant that enough conduct took place in Illinois to subject the defendant to BIPA's requirements.

The early stage of the proceedings means that the location-of-conduct question is yet to be decided, but certainly the court's ruling suggests that in some cases, non-Illinois entities—particularly those with an Internet presence—may be subject to liability under the Illinois BIPA.

New Legislation

One state has already passed a personal information protection law including protections for biometrics, which will go into effect this coming April. A number of other states, and the federal government, are considering a variety of laws concerning biometrics. Here's what's percolating in the laboratories of democracy, and in Washington, D.C.

• Laws on General Data Security

As we've noted in this space before, recent high profile data security lapses have galvanized a response from state attorneys general. State legislatures, and Congress, have likewise sprung into action, and one of the major ways in which biometrics protections are likely to make their way into law over the coming year is through legislative action directed at data security in general.

A number of such bills are currently pending in both houses of Congress. To expand on just one, the Consumer Privacy Protection Act of 2017, S.2124, was introduced by Senator Patrick Leahy (D-VT) last month and referred to the Senate Judiciary Committee. It would require certain safeguards for the protection of sensitive personally identifiable information and impose punishments for the failure to notify consumers of security breaches. It includes in the definition of "sensitive personally identifiable information" "[u]nique biometric data, such as faceprint, fingerprint, voice print, a retina or iris image, or any other unique physical representation." To the extent that biometric protections make it into federal law this coming year, it will likely be through this bill or others like it that seek to protect consumer data and include biometrics within that protection.

More immediately, Delaware has passed an act to amend its data security statute, and this will go into effect on April 14, 2018. On that date, among other changes, "personal information" protected by statute will expand beyond name, social security number, driver's license, and financial account numbers to cover a range of sensitive information, including "Unique biometric data generated from measurements or analysis of human body characteristics for authentication purposes."

Across the Delaware River, in New Jersey, a bill was introduced at the end of last month that will require entities that handle sensitive personal information, including biometric data, to develop and maintain a "comprehensive information security program."

• Laws Strengthening the Protection of Biometric Data

Another possible route, of course, is a comprehensive biometric-focused privacy law, like the Illinois BIPA. Currently, Alaska, Michigan and New Hampshire are considering such a law. (A similar bill in Montana died in committee earlier this year.) Each would impose notice/consent requirements, restrict disclosure, and require the eventual destruction of the biometric data. None of the bills has yet progressed past committee, however.

States that already have robust privacy protections may choose to simply add biometric information to those protections. This is the route that legislators in Massachusetts are pursuing. Bills in both the House and Senate would add biometric information to current state statutory protections.

• Laws on Specific Biometrics Issues

There is also a smattering of less comprehensive bills pending in state legislatures addressing certain specific biometrics issues. These are particularly interesting, not only for their impact on the sectors that will be directly affected, but also as a general window into the privacy implications of biometric technology generally.

California's SB-327, which has been inactive as of June, would require disclosure of the capabilities for "connected devices" to collect biometric data. We've discussed the security implications of the "Internet of Things" in this space before; as more connected devices become capable of collecting biometric data, the issues that SB-327 would address may become more prevalent.

Also in California, SB-21 would prescribe rules for law enforcement in the use of certain surveillance technologies, including "biometric identification hardware or software, and facial recognition hardware or software." The goal is to "ensure that the collection, use, maintenance, sharing, and dissemination of information or data collected with surveillance technology is consistent with respect for individual privacy and civil liberties." The always-present question of the proper balance between security, liberty and privacy will certainly be implicated as biometric technologies progress.

Speaking of the progress of biometrics technology, a pending bill in Idaho seeks to address the security of student data, including biometric data. Other, similar bills are pending in other states, but what makes Idaho's interesting is that it not only prohibits the inclusion in a student's record of any biometric information, but also "any data collected pursuant to a statewide assessment via affective computing, including analysis of facial expressions, EEG brain wave patterns, skin conductance, galvanic skin response, heart rate variability, pulse, blood volume, posture and eye tracking, any data that measures psychological resources, mindsets, effortful control, attributes, dispositions, social skills, attitudes or intrapersonal resources." One wonders how widespread such "behavioral biometrics" are in schools at this current moment, but the Idaho bill certainly anticipates the progression of this technology and the concomitant privacy questions raised by its use.

Whether with futuristic behavioral biometrics or the more mundane process of fingerprinting, biometric systems are sure to be in the news this coming year. We'll be keeping an eye on them, and on the ways the legal system addresses the promises and perils of emerging technologies. Stay tuned.

To view Foley Hoag's Security, Privacy and The Law Blog please click here

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