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Goldberg Kohn litigator David E. Morrison is quoted in "FTC Move Makes Biometric Privacy Liability a National Concern," published in the May 29, 2023, issue of Business Insurance.

The article concerns an April 2023 policy statement from the Federal Trade Commission on the collection of biometric information, such as fingerprints and retina scans, which puts a national spotlight on the issue and, the article reports, will likely lead to more litigation and regulatory action.

"The agency’s interest in the issue may lead to more robust enforcement actions throughout the United States."
~ David Morrison

Previously, the focus of biometric liability concerns has largely been confined to exposures in Illinois, where the state’s 2008 Biometric Information Privacy Act has led to thousands of lawsuits against businesses and two state Supreme Court decisions.

Other states, including Washington and Texas, as well as cities such as New York, Baltimore and Portland, Oregon, have enacted biometric legislation, but the Illinois law, which permits a private right of action, remains the most stringent.

The FTC's policy statement says the collection and use of biometric information may violate Section 5 of the Federal Trade Commission Act, which bars unfair and deceptive acts and practices that affect commerce, and that it plans to scrutinize its use.

The FTC said the increased use of biometric information by companies raises significant consumer privacy and data concerns and creates the potential for bias and discrimination.

Observers say the statement extends what is considered biometric information beyond the parameters of BIPA to include, for instance, photos, which are explicitly not considered biometric under Illinois law.

David E. Morrison says in the article that "the FTC is concerned with a broader set of biometrics than BIPA, which focuses on adequate releases or waivers and primarily warns about false claims associated with the unfair use of the information. The agency’s interest in the issue may lead to more robust enforcement actions throughout the United States," he said.