Protect People’s Most Personal Data From Secret Surveillance

Consumers deserve privacy and should know if their information is being collected and shared, yet private corporations have a long history of collecting even people’s most personal data. Companies often share data like fingerprints, faceprints, retinal or iris scans, voiceprint analysis, and DNA with third parties without consumers’ knowledge. In fact, biometric data is estimated to be a $45 billion a year industry by 2024. This policy would ensure corporations cannot collect or distribute biometric data without express consent from the consumer.

Click to see legislation
Frequently Asked Questions
Who does this help?
This policy protects all Americans by ensuring their most private data is not shared with corporations or the government without their consent. This policy does not impact law enforcement’s separate authority to gather data for law enforcement purposes.
Is this of high cost to the state?
There is no cost to the state for the enactment of this policy.
Partners
  • Consumers
  • Privacy advocates
  • Companies looking for uniform requirements across states
Opposition
  • Big corporations who are secretly surveilling their own users
Model Policy
Print
Download
SECTION 1 (TITLE):
This act shall be known as the Consumer Biometric Data Protection Act
SECTION 2 (PURPOSE):
This policy prohibits private companies from collecting, distributing, or selling consumer biometric information without first informing consumers, gaining their consent, and making specific disclosures to them.
SECTION 3 (PROVISIONS):

a) RETENTION, COLLECTION, DISCLOSURE, AND DESTRUCTION:

i) No private entity may collect, capture, purchase, receive through trade, or otherwise obtain a person’s or a customer’s biometric identifier or biometric information, unless it first:

1) Informs the subject or the subject’s legally authorized representative in writing that a biometric identifier or biometric information is being collected or stored;

2) Informs the subject or the subject’s legally authorized representative in writing of the specific purpose and length of term for which a biometric identifier or biometric information is being collected, stored, and used; and

3) Receives a written release executed by the subject of the biometric identifier or biometric information or the subject’s legally authorized representative.

ii) No private entity in possession of a biometric identifier or biometric information may:

1) sell, lease, trade, or otherwise profit from a person’s or a customer’s biometric identifier or biometric information OR

2) disclose, redisclose, or otherwise disseminate a person’s or a customer’s biometric identifier or biometric information unless:

(a) the subject of the biometric identifier or biometric information or the subject’s legally authorized representative consents to the disclosure or redisclosure;

(b) the disclosure or redisclosure completes a financial transaction requested or authorized by the subject of the biometric identifier or the biometric information or the subject’s legally authorized representative;

(c) the disclosure or redisclosure is required by State or federal law or municipal ordinance; or

(d) the disclosure is required pursuant to a valid warrant or subpoena issued by a court of competent jurisdiction.

iii) A private entity in possession of a biometric identifier or biometric information shall:

1) store, transmit, and protect from disclosure all biometric identifiers and biometric information using the reasonable standard of care within the private entity’s industry; and

2) store, transmit, and protect from disclosure all biometric identifiers and biometric information in a manner that is the same as or more protective than the manner in which the private entity stores, transmits, and protects other confidential and sensitive information.

iv) A private entity in possession of biometric identifiers or biometric information must develop a written policy, made available to the public, establishing a retention schedule and guidelines for permanently destroying biometric identifiers and biometric information when the initial purpose for collecting or obtaining such identifiers or information has been satisfied or within 3 years of the individual’s last interaction with the private entity, whichever occurs first. Absent a valid warrant or subpoena issued by a court of competent jurisdiction, a private entity in possession of biometric identifiers or biometric information must comply with its established retention schedule and destruction guidelines.

b) RIGHTS OF ACTION

i) A violation of this Act is a violation of STATE Consumer Protection Act and shall be enforceable by the Attorney General in accordance with that Act.

ii) Any person aggrieved by a violation of this Act shall have a right of action in a State circuit court or as a supplemental claim in federal district court against an offending party. A prevailing party may recover for each violation:

1) against a private entity that negligently violates a provision of this Act, liquidated damages of $1,000 or actual damages, whichever is greater;

2) against a private entity that intentionally or recklessly violates a provision of this Act, liquidated damages of $5,000 or actual damages, whichever is greater;

3) reasonable attorneys’ fees and costs, including expert witness fees and other litigation expenses; and

4) other relief, including an injunction, as the State or federal court may deem appropriate.

c) DEFINITIONS

i) “Biometric identifier” means a retina or iris scan, fingerprint, voiceprint, or scan of hand or face geometry. Biometric identifiers do not include writing samples, written signatures, photographs, human biological samples used for valid scientific testing or screening, demographic data, tattoo descriptions, or physical descriptions such as height, weight, hair color, or eye color.

1) Biometric identifiers do not include donated organs, tissues, or blood or serum stored on behalf of recipients or potential recipients of living or cadaveric transplants and obtained or stored by a federally designated organ procurement agency.

2) Biometric identifiers do not include information captured from a patient in a health care setting or information collected, used, or stored for health care treatment, payment, or operations under the federal Health Insurance Portability and Accountability Act of 1996.

3) Biometric identifiers do not include an X-ray, roentgen process, computed tomography, MRI, PET scan, mammography, or other image or film of the human anatomy used to diagnose, prognose, or treat an illness or other medical condition or to further validate scientific testing or screening.

ii) “Biometric information” means any information or data, regardless of how it is captured, converted, stored, or shared, based on an individual’s biometric identifier used to identify an individual. Biometric information does not include information derived from items or procedures excluded under the definition of biometric identifiers.

iii) “Confidential and sensitive information” means personal information that can be used to uniquely identify an individual or an individual’s account or property. Examples of confidential and sensitive information include, but are not limited to, a genetic marker, genetic testing information, a unique identifier number to locate an account or property, an account number, a PIN number, a passcode, a driver’s license number, or a social security number.

iv) “Private entity” means any individual, partnership, corporation, limited liability company, association, or other group, however organized. A private entity does not include a State or local government agency. A private entity does not include any court of [STATE], a clerk of the court, or a judge or justice thereof.

v) “Written release” means informed written consent or, in the context of employment, a release executed by an employee as a condition of employment.

d) Nothing in this Act shall be construed to impact the admission or discovery of biometric identifiers and biometric information in any action of any kind in any court, or before any tribunal, board, agency, or person.

e) Nothing in this Act shall be construed to conflict with the federal Health Insurance Portability and Accountability Act of 1996 and the rules promulgated under either Act.

f) Nothing in this Act shall be deemed to apply in any manner to a financial institution or an affiliate of a financial institution that is subject to Title V of the federal Gramm-Leach-Bliley Act of 1999 and the rules promulgated thereunder.

g) Nothing in this Act shall be construed to apply to a contractor, subcontractor, or agent of a State agency or local unit of government when working for that State agency or local unit of government.