On May 18, the Federal Trade Commission (FTC) issued a policy statement warning about the increased use of consumers’ biometric information and related marketing of technologies that use biometric information. The agency notes that these technologies raise considerable consumer privacy and data security concerns, as well as the potential for bias and discrimination.
This guidance by the FTC is the latest indication that the agency is willing to use all the tools available at its disposal to protect what it deems to be more sensitive or higher-risk information about consumers. Similar to the FTC’s approach to protecting consumer health information over the past couple of years, the agency has put forward an extremely expansive definition of what constitutes “biometrics,” indicating that the agency has its own approach to the issue that will not necessarily be influenced by how state laws or other regulators have addressed it. Additionally, the FTC specifically enumerates “unfair” acts or practices relating to the processing of biometrics (such as engaging in the “unexpected” collection of biometrics).
We note that one of the potential “unfair” acts or practices that the FTC identified in this guidance as a potential violation of the FTC Act is a business’s failure to identify “foreseeable risks” related to the processing of biometrics. While the FTC statement does not go as far as explicitly requiring data protection assessments, businesses that fail to do risk assessments...
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