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Abstract: Biometric identification technology is playing an increasingly significant role in the lives of consumers in the United States today. Despite the benefits of increased data security and ease of consumer access to businesses' services, lack of widespread biometric data regulation creates the potential for commercial misuse. Of particular concern is the use of biometric data by businesses, such as those within the data broker industry, to enable opaque discrimination against consumers. Although some states, such as Illinois, Texas, and Washington, have adopted comprehensive biometric data regulation statutes, the statutes do not offer a consistent approach. This Note argues that Congress should consider enacting a comprehensive statute. The industry-specific approach to privacy regulation of federal law, however, may leave regulation up to the states. Therefore, as more states look to regulate businesses' collection and use of biometric data, they should enact statutes that seek to balance protecting consumers' biometric data from discriminatory use and businesses' use of biometric data to enhance security and provide improved products and services.
INTRODUCTION
In 2017, Stanford University researchers published a study detailing the creation of a facial recognition algorithm that was able to predict an individual's sexual orientation with startling accuracy.1 The researchers took 35,000 photographs of self-identified homosexual and heterosexual individuals from public dating websites.2 The algorithm was designed to make the assumption that hereditary and personal grooming features, such as weight, hairstyle, and facial expressions, were proxies for sexual orientation.3 The study was criticized for the creation of a tool that collected data to categorize individuals based on sexual orientation and therefore had the potential to be used to exclude or discriminate against entire classes of individuals.4
Beyond concerns of potential discriminatory practices associated with the algorithm in the Stanford study, there is a growing fear of more widespread discrimination which could result from businesses' manipulation of biometric identification data.5 In the past decade, businesses have implemented biometric identification technology to both ease consumer access to businesses' services and for use in security and fraud prevention measures.6 Although there are currently no reports of businesses actually using an algorithm like the one created at Stanford, businesses routinely collect data sufficient to run such an algorithm through their use of biometric identification technology.7 Despite this increase in...