As we discussed in Part I, the United States does not have a single, comprehensive federal law governing biometric data. However, we have recently seen an increasing number of states focusing on this issue. Part I summarized legislative activity on this issue in 2020. In this Part II, we discuss noteworthy legislation to monitor in 2021.
What to Expect in 2021
At least two states—New York and Maryland—have already introduced biometrics legislation in this first month of 2021.
New York – AB 27
On January 6, 2021, the New York Assembly introduced the Biometric Privacy Act (BPA), a New York state biometric law aimed at regulating businesses handling biometric data. BPA will prohibit businesses from collecting biometric identifiers or information without first receiving informed consent from the individual, prohibit profiting from the data, and will require a publicly available written retention and destruction policy. As proposed, the statute contains a private right of action; and if passed, it will permit consumers to sue businesses for improperly collecting and using their biometric data. The statute follows Illinois’s BIPA, allowing recovery of $1,000 per negligent violation and $5,000 per intentional violation, or actual damages, whichever is greater, along with attorney’s fees and costs, and injunctive relief.