Reed Smith Client Alerts

The growing use of facial recognition and other biometric technologies by businesses, retailers, and landlords is primed to proliferate in response to the COVID-19 pandemic. Proper implementation and management of these technologies can help increase security and limit physical contact. These applications are already in use by real estate management firms in other countries and various businesses in the United States to prevent unauthorized building access, among other use cases. Certain touchless biometric applications also have the potential to identify individuals who may have COVID-19 through characteristics like their body temperature, which, in turn, could facilitate reopening businesses that can properly screen for and mitigate risks of COVID-19 exposure. However, the increased usage of contactless biometric technologies to address COVID-19-related challenges raises potential tradeoffs with consumer and employee privacy. Previously passed and newly introduced biometrics laws could increase tensions between privacy concerns stemming from the collection and sharing of biometric data, and growing interest in using biometric technologies for public safety to combat COVID-19. Businesses considering the use of biometrics will have a growing patchwork of state and federal laws to consider and with which to comply.
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As COVID-19 continues to shutter business across industries, both the public and private sectors are grappling with safe ways to reactivate workers and re-engage consumers. Facial recognition and other biometric technologies (for instance, fingerprinting, voiceprinting, and retina, facial, hand, or eye imaging) offer possible solutions. Evaluating health risks without the need for physical contact may be key in phased return to regular business in many parts of the country. However, these same technologies confront a complicated patchwork of state and municipal privacy laws that can prove inconsistent and onerous in their scope and application. So as we look to reopen the country, the COVID-19 crisis very well may cause us to rethink how we view privacy and regulate biometric technologies. For example, under what circumstances, can a landlord, a retail store, or other commercial tenants use such technologies to determine who has had the virus and who is safe to come to work?

To be sure, tension between privacy and biometric technologies began long before the COVID-19 pandemic. Concerns over government usage of forms of biometric surveillance, including facial recognition, surfaced as technology proliferated at airports, border checkpoints, and with police body cameras. The same technology now is causing similar concerns as other countries – China, for example – are using facial recognition to enforce compliance with quarantine orders and to detect pedestrians’ body temperatures in crowds. Indeed, advances in biometric technologies now allow the ability to recognize individuals even if they are wearing masks, and biometric identification systems can offer “non-refutable” proof of antibodies by linking test subjects to results, which could enable a more targeted approach to vaccines, once available. This could prove to be of tremendous value to U.S. companies.

Specifically, in the commercial property world, landlords and office building owners tasked with the health and security of tenants and employees may find facial recognition to be a particularly useful tool. If widespread testing is implemented to determine COVID-19 immunity, facial recognition technology could potentially be used by landlords to similarly permit (or deny) building entry. Retailers similarly could use the technology to determine who is permitted to work in or patronize a store or restaurant. However, before property owners, retailers, and other businesses consider the use of facial recognition and other biometric technologies for their employees or their customers, they should give careful consideration to the varying requirements and restrictions of their state and local laws.