Bill Analysis — HB 2363, Biometric Data Ownership Rights (Washington House, January 14, 2020)

Summary

Bill analysis of HB 2363, prepared for the Innovation, Technology & Economic Development Committee of the Washington State House of Representatives Office of Program Research, hearing date 1/14/20. The brief description is providing remedies for violations of biometric data ownership rights; the sponsors are Representatives Smith and Hudgins. The bill declares that each person owns and has an exclusive property right in the person's biometric identifiers. It directs the Attorney General, in consultation with the Office of Privacy and Data Protection, to convene a task force, whose report with recommended legal remedies is due to the Legislature by December 1, 2020. The analysis lists the appropriation as None and says a fiscal note was requested on January 13, 2020.

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Washington State                   BILL
House of Representatives
Office of Program Research     ANALYSIS
Innovation, Technology & Economic
Development Committee
                                         HB 2363
Brief Description: Providing remedies for violations of biometric data ownership rights.

Sponsors: Representatives Smith and Hudgins.


                                       Brief Summary of Bill
      Ÿ Declares that each person owns and has an exclusive property right in the person's
        biometric identifiers.
      Ÿ Directs the Attorney General, in consultation with the Office of Privacy and Data
        Protection, to convene a task force to examine issues related to infringement on the
        biometric identifier ownership rights by biometric surveillance technology.


Hearing Date: 1/14/20

Staff: Yelena Baker (786-7301).

Background:

Biometric identifiers.

The terms "biometric data," "biometric information," or "biometric identifier" variously refer to
measurable biological or behavioral characteristics unique to an individual. Biometrics may be
used for identification and authentication purposes, such as unlocking a device or authorizing a
payment. They may also be used to gather personal characteristics for customizing services or
information, such as in advertising.

Regulation of biometric identifiers.

There is no federal law that specifically regulates the collection or use of biometric data.

––––––––––––––––––––––
    This analysis was prepared by non-partisan legislative staff for the use of legislative
    members in their deliberations. This analysis is not a part of the legislation nor does it
    constitute a statement of legislative intent.

House Bill Analysis                             -1-                                            HB 2363
In 2017, two Washington laws regulating the collection and use of biometric data were enacted:
one applies to state agencies and the other to any person or business that enrolls biometric
identifiers in a database for commercial purposes.

A state agency is prohibited from obtaining a biometric identifier without providing notice that
clearly specifies the purpose and use of the identifier and obtaining consent specific to the terms
of the notice. A state agency that obtains biometric identifiers must minimize the review and
retention of biometric identifiers and establish security policies to ensure the integrity and
confidentiality of biometric identifiers. A state agency may only use a biometric identifier
consistent with the terms of the notice and consent and is prohibited from selling a biometric
identifier. Biometric identifiers collected by a state agency may not be disclosed under the
Public Records Act (PRA).

A person or business may not enroll a biometric identifier in a database for a commercial
purpose, without providing notice, obtaining consent, or providing a mechanism to prevent
subsequent use. A biometric identifier enrolled or obtained for a commercial purpose may not be
used or disclosed in a way inconsistent with the original terms under which it was provided,
unless new consent is obtained. The sale, lease, or disclosure of a biometric identifier for a
commercial purpose, without the individual's consent, is prohibited except in certain
circumstances, such as when it is necessary in providing a product or service sought by the
individual or required under a court order. A person or business in possession of biometric
identifiers enrolled for a commercial purpose must guard against unauthorized access and adhere
to retention limitations.

Office of Privacy and Data Protection.

In 2016 the Office of Privacy and Data Protection (OPDP) was created to serve as a central point
of contact for state agencies on policy matters involving data privacy and data protection. The
primary duties of the OPDP with respect to state agencies include conducting privacy reviews
and trainings, coordinating data protection, and articulating privacy principles and best policies.

Summary of Bill:

Each person owns and has an exclusive property right in the person's biometric identifiers.
"Biometric identifier" is defined as any information, regardless of how it is captured, converted,
stored, or shared, based on biological, physiological, or behavioral traits that are uniquely
attributable to a single individual.

The Attorney General, in consultation with the Office of Privacy and Data Protection, is directed
to convene a task force to examine the issues related to infringement by biometric surveillance
technology on the biometric identifiers ownership rights. The majority of the task force
members must be representatives of organizations that advocate for civil liberties, consumer
rights, and privacy protections.

By December 1, 2020, the Attorney General must submit to the Legislature a report summarizing
the findings of the task force and recommending legal remedies for violations of biometric data
ownership rights.


House Bill Analysis                             -2-                                         HB 2363
Appropriation: None.

Fiscal Note: Requested on January 13, 2020.

Effective Date: The bill takes effect 90 days after adjournment of the session in which the bill is
passed.




House Bill Analysis                            -3-                                         HB 2363


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