Recent judicial interpretations of the Illinois Biometric Information Privacy Act (“BIPA”), 740 ILCS 14, present potential litigation risks for retailers who employ biometric-capture technology, such as facial recognition, retina scan or fingerprint software. Federal judges in various district courts have allowed BIPA cases to move forward against companies such as Facebook, Google and Shutterfly, and retailers who use biometric data for security, loss prevention or marketing purposes may also become litigation targets as federal judges decline to narrow the statute’s applicability and additional states consider passing copycat statutes.
The Article 29 Working Party (“Working Party”) recently issued its Opinion on data processing at work (the “Opinion”). The Opinion, which complements the Working Party’s previous Opinion 08/2001 on the processing of personal data in the employment context and Working document on the surveillance of electronic communications in the workplace, seeks to provide guidance on balancing employee privacy expectations in the workplace with employers’ legitimate interests in processing employee data. The Opinion is applicable to all types of employees and not just those under an employment contract (e.g., freelancers).
On May 16, 2017, the Governor of the State of Washington, Jay Inslee, signed into law House Bill 1493 (“H.B. 1493”), which sets forth requirements for businesses who collect and use biometric identifiers for commercial purposes. The law will become effective on July 23, 2017. With the enactment of H.B. 1493, Washington becomes the third state to pass legislation regulating the commercial use of biometric identifiers. Previously, both Illinois and Texas enacted the Illinois Biometric Information Privacy Act (740 ILCS 14) (“BIPA”) and the Texas Statute on the Capture or Use of Biometric Identifier (Tex. Bus. & Com. Code Ann. §503.001), respectively. Continue Reading Washington Becomes Third State to Enact Biometric Privacy Law
On June 15, 2016, the U.S. Department of Commerce’s National Telecommunications and Information Administration (“NTIA”) announced that its multistakeholder process to develop a code of conduct regarding the commercial use of facial recognition technology had concluded with the group reaching a consensus on a best practices document. As we previously reported, the NTIA announced the multistakeholder process in December 2013 in response to the White House’s February 2012 privacy framework, which directed the NTIA to oversee the development of codes of conduct that specify how the Consumer Privacy Bill of Rights applies in specific business contexts.
On June 16, 2015, the Consumer Federation of America announced in a joint statement with other privacy advocacy groups that they would no longer participate in the U.S. Department of Commerce’s National Telecommunications and Information Administration (“NTIA”) multistakeholder process to develop a code of conduct regarding the commercial use of facial recognition technology. The letter was signed by the Center for Democracy & Technology, the Center for Digital Democracy, the Consumer Federation of America, Common Sense Media, the Electronic Frontier Foundation, the American Civil Liberties Union, Consumer Action, Consumer Watchdog and the Center on Privacy & Technology at Georgetown University Law Center. This decision comes after 16 months of meetings and negotiations. In its announcement, the group highlighted its inability to come to an agreement with industry groups on how the issue of consumer consent would be addressed in a code of conduct regarding the use of facial recognition technology. Specifically, the disagreement between consumer and industry groups revolved around the default rule for consumer consent (i.e., whether the default should be opt-in or opt-out consent).
On March 28, 2014, the 87th Conference of the German Data Protection Commissioners concluded in Hamburg. This biannual conference provides a private forum for the 17 German state data protection authorities (“DPAs”) and the Federal Commissioner for Data Protection and Freedom of Information, Andrea Voßhoff, to share their views on current issues, discuss relevant cases and adopt Resolutions aimed at harmonizing how data protection law is applied across Germany.
On December 3, 2013, the U.S. Department of Commerce’s National Telecommunications and Information Administration (“NTIA”) announced a new multistakeholder process to develop a code of conduct regarding the commercial use of facial recognition technology. The first meeting is set for February 6, 2014 in Washington, D.C., and will provide stakeholders with background on the privacy issues associated with facial recognition technology, including how facial recognition technology currently is being used by businesses and how it may be used in the near future. The February meeting is open to all interested stakeholders and will be available for viewing via webcast. Additional meetings are planned for the spring and summer of 2014.
On October 22, 2012, the Federal Trade Commission released a report entitled “Facing Facts: Best Practices for Common Uses of Facial Recognition Technologies.” The report focuses on privacy concerns associated with facial recognition technology, which is becoming increasingly ubiquitous across a variety of commercial applications ranging from search engines to video games to password authentication.
On March 22, 2012, the Article 29 Working Party (the “Working Party”), adopted an Opinion analyzing the privacy and data protection law framework applicable to the use of facial recognition technology in online and mobile services, such as social networks and smartphones. The Working Party defines facial recognition as the “automatic processing of digital images which contain the faces of individuals for the purpose of identification, authentication/verification or categorization of those individuals.”
On December 23, 2011, the Federal Trade Commission announced that it is seeking public comments on the privacy and security implications raised by the use of facial recognition technology. The FTC recently held a public workshop entitled “Face Facts: A Forum on Facial Recognition Technology,” that discussed the current and future commercial applications of facial recognition technologies and the associated privacy and security concerns.