On January 13, House Delegate Sara Love Introduced the “Biometric Identifiers and Biometric Information Privacy Act” (the “Act”) substantially modeled after the Biometric Information Privacy Act in Illinois, 740 ILCS 14 et seq. (the “BIPA”). Enacted in 2008, the Illinois BIPA only recently triggered an avalanche of class actions in Illinois, spurring other legislative activity, including in New York. If enacted, Maryland’s Act would become effective January 1, 2022.

Just like the BIPA and the proposed law in the Empire State, the Act would establish rules for “private entities” possessing “biometric identifiers” and “biometric information” of a person, such as:

  • Development of a publicly available policy establishing retention and destruction guidelines,
  • Mandated reasonable safeguards relating to the storage, transmission, and disclosure of such information in a manner at least as protective as for “confidential and sensitive information,” such as social security numbers and account numbers,
  • Prohibiting private entities from profiting from the information, and
  • Limited right to disclose without consent.

Unlike the BIPA, the Maryland bill would clarify the policy need not be publicly available when it applies only to employees and is used only for internal operations.

Most important, the Act also would create a private right of action for persons “aggrieved” by violations of the Act, using language similar to the BIPA, permitting persons to recover the greater of (i) statutory damages of at least $1,000 for each negligent violation, or $5,000 for each intentional or reckless violation, and (ii) actual damages.

We know the Illinois Supreme Court decided that, in general, persons bringing suit under the BIPA do not need to allege actual injury or adverse effect, beyond a violation of their rights under the BIPA, in order to qualify as an “aggrieved” person and be entitled to seek liquidated damages, attorneys’ fees and costs, and injunctive relief under the BIPA. See Rosenbach v. Six Flags Entertainment Corp.

As with the proposed BPA in New York, Maryland’s Act is not yet the law. However, if enacted, private entities covered by the Act should promptly take steps to comply. That is, they should review their time management, point of purchase, physical security, or other systems that obtain, use, or disclose biometric identifiers or biometric information against the requirements under the Act. Biometric identifiers under the Act include data of an individual generated by automatic measurements of that individual’s biological characteristics such as fingerprint, voiceprint, genetic print, retina or iris image, or any other unique biological characteristic that can be used to uniquely authenticate the individual’s identity. In this respect, the Act would be broader than the BIPA – in Illinois, a biometric identifier is limited to a retina or iris scan, fingerprint, voiceprint, or scan of hand or face geometry. There are, however, exclusions from biometric identifiers under the Act, such as writing samples, photographs, demographic data, physical descriptions (such as height and weight), and protected health information covered by HIPAA.

In the event private entities find technical or procedural gaps in compliance – such as not having a retention and destruction policy concerning such information or obtaining consent to provide biometric information to a third party – they should quickly remedy those gaps.

It is unclear whether courts in Maryland will interpret the availability of remedies under the Act, if enacted, the same as the Illinois Supreme Court in Rosenbach. However, if they do, the duties imposed on private entities subject to the law regarding the possession, retention, disclosure, safeguarding, and destruction of a person’s biometric identifiers or biometric information will define the statutory rights of persons protected by the law. Accordingly, when a private entity fails to comply with one of the Act’s requirements, that violation could constitute an invasion, impairment, or denial of a right under the Act resulting in the person being “aggrieved” and entitled to seek recovery.

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Photo of Joseph J. Lazzarotti Joseph J. Lazzarotti

Joseph J. Lazzarotti is a Principal in the Morristown, New Jersey, office of Jackson Lewis P.C. He founded and currently leads the firm’s Privacy, e-Communication and Data Security Practice, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with…

Joseph J. Lazzarotti is a Principal in the Morristown, New Jersey, office of Jackson Lewis P.C. He founded and currently leads the firm’s Privacy, e-Communication and Data Security Practice, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the International Association of Privacy Professionals. Trained as an employee benefits lawyer, focused on compliance, Mr. Lazzarotti also is a member of the firm’s Employee Benefits Practice Group.

In short, his practice focuses on the matrix of laws governing the privacy, security, and management of data, as well as the impact and regulation of social media. He also counsels companies on compliance, fiduciary, taxation, and administrative matters with respect to employee benefit plans.

Privacy and cybersecurity experience – Mr. Lazzarotti counsels multinational, national and regional companies in all industries on the broad array of laws, regulations, best practices, and preventive safeguards. The following are examples of areas of focus in his practice:

  • Advising health care providers, business associates, and group health plan sponsors concerning HIPAA/HITECH compliance, including risk assessments, policies and procedures, incident response plan development, vendor assessment and management programs, and training.
  • Coached hundreds of companies through the investigation, remediation, notification, and overall response to data breaches of all kinds – PHI, PII, payment card, etc.
  • Helping organizations address questions about the application, implementation, and overall compliance with European Union’s General Data Protection Regulation (GDPR) and, in particular, its implications in the U.S., together with preparing for the California Consumer Privacy Act.
  • Working with organizations to develop and implement video, audio, and data-driven monitoring and surveillance programs. For instance, in the transportation and related industries, Joe has worked with numerous clients on fleet management programs involving the use of telematics, dash-cams, event data recorders (EDR), and related technologies. He also has advised many clients in the use of biometrics including with regard to consent, data security, and retention issues under BIPA and other laws.
  • Assisting clients with growing state data security mandates to safeguard personal information, including steering clients through detailed risk assessments and converting those assessments into practical “best practice” risk management solutions, including written information security programs (WISPs). Related work includes compliance advice concerning FTC Act, Regulation S-P, GLBA, and New York Reg. 500.
  • Advising clients about best practices for electronic communications, including in social media, as well as when communicating under a “bring your own device” (BYOD) or “company owned personally enabled device” (COPE) environment.
  • Conducting various levels of privacy and data security training for executives and employees
  • Supports organizations through mergers, acquisitions, and reorganizations with regard to the handling of employee and customer data, and the safeguarding of that data during the transaction.
  • Representing organizations in matters involving inquiries into privacy and data security compliance before federal and state agencies including the HHS Office of Civil Rights, Federal Trade Commission, and various state Attorneys General.

Benefits counseling experience – Mr. Lazzarotti’s work in the benefits counseling area covers many areas of employee benefits law. Below are some examples of that work:

  • As part of the Firm’s Health Care Reform Team, he advises employers and plan sponsors regarding the establishment, administration and operation of fully insured and self-funded health and welfare plans to comply with ERISA, IRC, ACA/PPACA, HIPAA, COBRA, ADA, GINA, and other related laws.
  • Guiding clients through the selection of plan service providers, along with negotiating service agreements with vendors to address plan compliance and operations, while leveraging data security experience to ensure plan data is safeguarded.
  • Counsels plan sponsors on day-to-day compliance and administrative issues affecting plans.
  • Assists in the design and drafting of benefit plan documents, including severance and fringe benefit plans.
  • Advises plan sponsors concerning employee benefit plan operation, administration and correcting errors in operation.

Mr. Lazzarotti speaks and writes regularly on current employee benefits and data privacy and cybersecurity topics and his work has been published in leading business and legal journals and media outlets, such as The Washington Post, Inside Counsel, Bloomberg, The National Law Journal, Financial Times, Business Insurance, HR Magazine and NPR, as well as the ABA Journal, The American Lawyer, Law360, Bender’s Labor and Employment Bulletin, the Australian Privacy Law Bulletin and the Privacy, and Data Security Law Journal.

Mr. Lazzarotti served as a judicial law clerk for the Honorable Laura Denvir Stith on the Missouri Court of Appeals.