California State Senator Introduces BIPA-like Law to Protect Biometric Information | Jackson Lewis CP

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Some members of the California legislature want their state to remain the leader in data privacy and cybersecurity regulation in the United States. 740 ILCS 14 et seq. (BIPA). State Senator Bob Wieckowski introduced SB 1189 on February 17, 2022, which would add protections for biometric information in its state in addition to other legal provisions, such as the California Privacy Rights Act (CPRA) which will come into force on January 1, 2023.

If passed, SB 1189 would significantly expand biometric information privacy and security protections in California and likely influence additional legislative activity in the United States. Unlike some of the application limitations in the California Consumer Privacy Act (CCPA), the Bill would apply to any private entity (defined as an individual, partnership, corporation, limited liability company, association or similar group, however organized, other than the University of California). It could also open the door to a wave of litigation, similar to what organizations subject to BIPA are currently facing.

SB 1189 includes a fairly broad definition of biometric information, following the CCPA definition that came into effect on January 1, 2020:

(1) “Biometric Information” means the physiological, biological or behavioral characteristics of a person, including information relating to the deoxyribonucleic acid (DNA) of an individual, which may be used or is intended to be used, only or in combination with each other or with other identifying data, to establish individual identity.

(2) Biometric information includes but is not limited to iris, retina, fingerprint, face, hand, palm, vein pattern and voice recording imaging, from which an identifier pattern, such as a facial print, a minutiae pattern, or a voice print, can be extracted, and keystroke patterns or rhythms, gait patterns or rhythms, and sleep data , health, or exercise that contain identifying information.

Many know or have encountered devices that scan a person’s fingerprints or face that can capture or create biometric information. This definition seems to go beyond these more “traditional” technologies. So, for example, if you have developed a unique style for typing on your keyboard at work, you may be creating biometric information. The contours of this definition are quite vague, so private entities should carefully consider the capture of certain data sets and the capabilities of new devices, systems, equipment, etc.

The bill would prohibit private entities from collecting, capturing, purchasing, etc. a person’s biometric information unless the private entity:

  • requires the biometric information to: (i) provide a service requested or authorized by the subject of the biometric information, or (ii) fulfill another valid business purpose (as defined in the CCPA) that is included in the written public policy described herein -below, AND
  • first (i) inform the person or their legally authorized representative, in writing, both of the biometric information being collected, stored or used, and of the specific purpose and duration for which the biometric information is being collected, stored or used, and (ii) receives written authorization signed by the subject of the biometric information or their legally authorized representative.

In this regard, SB 1189 is very similar to BIPA, with some additional requirements for the written version. For example, the written release cannot be combined with an employment contract or other consent form.

Under SB 1189, private entities in possession of biometric information would also be required to develop and make publicly available a written policy setting out a retention schedule and guidelines for the destruction of biometric information. In general, destruction of information would be required no later than one year after the individual’s last intentional interaction with the private entity. This is similar to the period required in Texas biometric law.

In addition to requiring reasonable safeguards to protect biometric information, the bill would impose limits on the disclosure of biometric information. Unless disclosed to effect a financial transaction requested by the data subject or disclosed as required by law, written authorization would be required to disclose biometric information. The release should indicate the data to be disclosed, the reason for the disclosure and the intended recipients.

Perhaps the most troubling provision of the bill for private entities is section 1798.306. Again, much like BIPA, SB 1189 would establish a private right of action allowing individuals to allege a violation of law and bring a civil action for any of the following:

  • The greater of (i) statutory damages between $100 and $1,000 per violation per day, and (ii) actual damages.
  • Punitive damages.
  • Reasonable attorney fees and court costs.
  • Any other relief, including equitable or declaratory relief, that the court deems appropriate.

Although still early in the legislative process for SB 1189, its introduction illustrates a continued desire by state and local lawmakers to enact protections for biometric information. See, for example, recent developments in New York, Maryland and Oregon depicted in our Biometric Laws Map. Before implementing technologies or systems that may involve biometric information, private entities should carefully consider the emerging legislative landscape.

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