Biometric data represent physical measurements and calculations related to distinctive human characteristics. This could include fingerprints, DNA or iris, and retina recognition. More recently, advances in technology have made it easier to identify the behavioral characteristics of a person.  This could include typing rhythm, gait, and even digital signatures. Even those "behavioral characteristics" can be captured and utilized biometric data.

Prior to 2018, only three states had biometric privacy laws.  That number has nearly tripled with many states introducing new legislation. New York recently introduced Assembly Bill 27. This Biometric Privacy Act requires employees or customers to provide written consent prior to data collection. This measure could impact business throughout the United States because New York is one of the biggest state economies in the U.S.

Some states are utilizing Consumer Information Protection Acts to expand “Identity Theft Protection” to include biometric data. For example, Oregon amended its consumer information protection act to include automatic measurements of a consumers’ physical characteristics, like an image of a fingerprint, retina, or iris that are used to authenticate the consumer’s identity during a transaction. California went even further. Under California’s consumer privacy act, it expands consumer biometric information to include a consumer’s “internet or other electronic network information", including but not limited to, browsing history, search history, and information regarding a consumer’s interaction with an Internet Web site, application, or advertisement.

As the cloud continues to ease the burdens of doing business across state lines, it is critical for business executives to keep up with laws that restrict biometric data retention, biometric capture, and privacy policy. I encourage businesses to retain legal counsel to review and revise contracts and terms of conditions. Especially, if you do business in states that have biometric privacy laws or extended consumer privacy laws.

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