Legislation Introduced to Put Limits on Use of Facial Recognition

Written by: Richard Sheinis, Esq.

On August 4, 2020, yet more data privacy legislation was introduced by Senators Bernie Sanders and Jeff Merkley.  Titled “The National Biometric Information Privacy Act of 2020,”  this continues the trend of law makers introducing piecemeal, and frequently punitive, data privacy legislation rather than working on a single comprehensive data privacy law to address all aspects of data privacy regardless of industry.  Unfortunately, many members of Congress are more interested in using data privacy legislation to grandstand rather than doing the work that data privacy requires.

The Act prohibits a company from collecting or obtaining a person’s biometric information unless the information is necessary to provide a service to the person, or for another valid business purpose which as been previously specified.  The person must be informed their biometric information is being collected, and the person must provide a written release authorizing such collection.  If biometric information has been lawfully collected, the company still may not sell the information, use it for advertising purposes or otherwise profit from the biometric information without authorization from the subject of the information.

Biometric information or identifier includes a retina or iris scan, voice print, face print, (including any face print derived from a photograph), fingerprints or palm prints, and any other uniquely identifying information based on the characteristics of an individual’s gait or other immutable characteristic of an individual.  Biometric information specifically does not include photographs.  Apparently, a company could use a photograph to identify an individual without violating the Act as long as the photograph is not used to create a face print.

In his press release for the Act, Senator Merkley stated, “We have to fight against a big brother surveillance state that eradicates our privacy and our control of our own information, be it a threat from the government or from private companies.”  Merkley went on to question, “Do we really want to live under constant surveillance by unaccountable corporations?”  Has Senator Merkley has conveniently forgotten that our own United States government can monitor all of our phone calls and text messages virtually at will?  I guess it is okay when our government plays “Big Brother” as long as  private corporations are demonized.