Insurance Considerations for Biometric Liability

Across the United States, state legislators are introducing and passing new biometric privacy laws that create varying degrees of liability exposure. These new laws should spur businesses to assess both their collection and use of biometric information and the insurance policies they would tap to cover any exposure to biometric liability.  

At present, four states—Illinois, Texas, Virginia and Washington—have enacted biometric privacy laws that specifically require giving notice and obtaining consent before collecting biometric information, and many other states regulate the collection and handling of biometric data in more limited ways. Several states have pending legislation modeled to varying degrees on Illinois’ pioneering Biometric Information Privacy Act (BIPA), which was enacted in 2008 and is the most stringent of the existing state biometric privacy laws. In the first quarter of 2022 alone, seven states introduced biometric privacy legislation sharing key features of BIPA. These bills may have varying impact depending on factors such as whether or not they create a private cause of action, the size of fines assessed per violation, and whether they allow for a notice period and opportunity to cure. 

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Cort T. Malone is a shareholder in the New York and Stamford offices of Anderson Kill and practices in the insurance recovery and the corporate and commercial litigation departments.

Jade W. Sobh is an attorney in Anderson Kill’s New York office who practices in the insurance recovery and white collar defense departments.