Some members of the California legislature want their state to remain the leader for data privacy and cybersecurity regulation in the U.S. This includes protections for biometric information, similar to those under the Biometric Information Privacy Act in Illinois, 740 ILCS 14 et seq. (BIPA). State Senator Bob Wieckowski introduced SB 1189 on February 17, 2022, which would add protections for biometric information in his state on top of other statutory provisions, such as the California Privacy Rights Act (CPRA) which goes into effect January 1, 2023.

If enacted, SB 1189 would significantly expand privacy and security protection for biometric information in California and likely influence additional legislative activity in the U.S. Notably, unlike some of the limitations on application in the California Consumer Privacy Act (CCPA), the Bill would apply to any private entity (defined as an individual, partnership, corporation, limited liability company, association, or similar group, however organized, other than the University of California). It could also open the door to a wave of litigation, similar to what organizations subject to the BIPA currently face.

SB 1189 includes a fairly broad definition of biometric information, tracking the definition under the CCPA that went into effect January 1, 2020:

(1) “Biometric information” means a person’s physiological, biological, or behavioral characteristics, including information pertaining to an individual’s deoxyribonucleic acid (DNA), that can be used or is intended to be used, singly or in combination with each other or with other identifying data, to establish individual identity.

(2) Biometric information includes, but is not limited to, imagery of the iris, retina, fingerprint, face, hand, palm, vein patterns, and voice recordings, from which an identifier template, such as a faceprint, a minutiae template, or a voiceprint, can be extracted, and keystroke patterns or rhythms, gait patterns or rhythms, and sleep, health, or exercise data that contain identifying information.

Many are familiar with or have encountered devices that scan fingerprints or a person’s face which may capture or create biometric information. This definition appears to go beyond those more “traditional” technologies. So, for example, if you’ve developed a unique style for tapping away at your keyboard while at work, you might be creating biometric information. The contours of this definition are quite vague, so private entities should carefully consider the capturing of certain data sets and the capabilities of new devices, systems, equipment, etc.

The Bill would prohibit private entities from collecting, capturing, purchasing, etc. a person’s biometric information unless the private entity:

  • requires the biometric information either to: (i) provide a service requested or authorized by the subject of the biometric information, or (ii) satisfy another valid business purpose (as defined in the CCPA) which is included in the written public policy described below, AND
  • first (i) informs the person or their legally authorized representative, in writing, of both of the biometric information being collected, stored, or used, and the specific purpose and length of time for which the biometric information is being collected, stored, or used, and (ii) receives a written release executed by the subject of the biometric information or their legally authorized representative.

In this regard, SB 1189 looks a lot like the BIPA, with some additional requirements for the written release. For example, the written release may not be combined with an employment contract or another consent form.

Under SB 1189, private entities in possession of biometric information also would be required to develop and make available to the public a written policy that establishes a retention schedule and guidelines for destroying biometric information. In general, destruction of the information would be required no later than one year after the individual’s last intentional interaction with the private entity. This is similar to the period required in the Texas biometric law.

In addition to requiring reasonable safeguards to protect biometric information, the Bill would place limitations on the disclosure of biometric information. Unless disclosed to complete a financial transaction requested by the data subject or disclosed as required by law, a written release would be required to disclose biometric information. The release would need to indicate the data to be disclosed, the reason for the disclosure, and the intended recipients.

Perhaps the most troubling provision of the Bill for private entities is section 1798.306. Again, looking a lot like the BIPA, SB 1189 would establish a private right of action permitting individuals to allege a violation of the law and bring a civil action for any of the following:

  • The greater of (i) statutory damages between $100 and $1,000 per violation per day, and (ii) actual damages.
  • Punitive damages.
  • Reasonable attorney’s fees and litigation costs.
  • Any other relief, including equitable or declaratory relief, that the court determines appropriate.

Though still early in the legislative process for SB 1189, its introduction illustrates a continued desire by state and local lawmakers to enact protections for biometric information. See, e.g., recent developments in New York, Maryland, and Oregon described in our Biometric Law Map. Before implementing technologies or systems that might involve biometric information, private entities need to carefully consider the emerging legislative landscape.

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Photo of Joseph J. Lazzarotti Joseph J. Lazzarotti

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP)…

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, 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, Joe 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 – Joe 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 – Joe’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.

Joe 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.

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