A biometric information privacy protection bill introduced in the New York Assembly this month is pending in that body’s Consumer Affairs and Protection Committee as of Jan. 21, 2021.
Introduced by 17 Democrats and seven Republicans, the bill would require private entities storing biometric identifiers or biometric information to develop written policies establishing a retention schedule and guidelines for permanently destroying the data “when the initial purpose for collecting or obtaining such identifiers or information has been satisfied or within three years of the individual's last interaction with the private entity, whichever occurs first.”
Illinois kicked off the U.S. trend with the passage of its Biometric Information Privacy Act (BIPA) followed by Texas and Washington. Although its definition differs from that of the other states, the California Consumer Privacy Act (CCPA) also covers biometric information.
Globally, 28 European countries provide protection under the General Data Protection Regulation (GDPR). In 2017 the Supreme Court of India held that privacy is a constitutional right. In 2018, while finding requiring biometric data for filing taxes and accessing government benefits was not a violation of that right, India’s high court said the data could not be used for other purposes and should be safeguarded.
With data breaches on the rise, some states are also proposing laws requiring biometric information be included in data breach notifications. Like the Illinois BIPA, New York’s proposed law includes a private right of action with statutory damages. This provides an important deterrent when state attorneys general have limited resources. It's also a right that will face significant pushback from lobbying groups.
And like the CCPA and the Illinois BIPA, the New York law would represent another state-specific privacy regime for companies to comply with, increasing the pressure for the federal government to pass comprehensive and preemptive privacy reforms.
With a global pandemic and economic crisis in full swing, however, it may not be at the top of the new administration’s agenda.
Jennifer Oliver focuses on antitrust, complex business, and investment litigation. Her experience includes active roles in several high-profile jury trials, serving as lead counsel in complex mediations, and arguing before courts at both the trial and appellate levels. Jennifer is also a certified information privacy professional.