A recent policy statement from the Federal Trade Commission on the collection of biometric information, such as fingerprints and retina scans, will put a national spotlight on the issue, which will likely lead to more litigation and regulatory action, experts say.

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 policy statement issued by the FTC last month 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 the Illinois law.

“It’s a useful document,” said Fredric D. Bellamy, a member of Dickinson...

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