ACLU Comment on Newly Released FTC Policy Statement on Biometrics

WASHINGTON — The Federal Trade Commission (FTC) has released a policy statement on biometric information and Section 5 of the Federal Trade Commission Act, focused on protecting individuals from risks posed by the use of biometrics — data that describes a person’s physical, biological, or behavioral traits — and technology.

The policy statement clarifies how the FTC’s existing authority to address unfair and deceptive practices applies to biometrics. It makes clear that false or unsubstantiated claims relating to the reliability or fairness of biometrics or the failure to assess and mitigate the harms from their use may fall within the FTC’s enforcement authority.

The policy statement builds on increasing recognition that privacy protections must go beyond “notice-and-consent” and instead must provide substantive protections that restrict data collection at the source, as highlighted by Chair Lina Khan and Commissioner Rebecca Slaughter. The ACLU has championed limitations on the collection and use of biometrics at the federal and state levels and defended individuals’ right to control their biometrics in court.

The following comment is from Cody Venzke, senior policy counsel in the National Political Advocacy Department at the American Civil Liberties Union:

“This is a good step forward by the FTC to exercise its existing authority to protect individuals from harms arising from the collection, use, and disclosure of their biometric identifiers. Biometrics are particularly sensitive and prone to abuse, and their use and collection often occur without individuals’ knowledge or any meaningful opportunity to avoid the risks they pose. Those risks include the loss of anonymity, persistent tracking of movements and activities, and harms from being misidentified, which disproportionately affect people of color and members of other marginalized communities. The FTC appropriately recognizes that failure to identify and mitigate those risks may constitute an unfair practice, subject to the FTC’s enforcement. The ACLU welcomes the FTC’s guidance and looks forward to future steps to protect individuals’ control over their privacy.”