Fake IDs may soon be a relic of the past, with businesses increasingly adopting digital age verification tools…
Fake IDs may soon be a relic of the past, with businesses increasingly adopting digital age verification tools. While using technology may be more accurate, it also raises serious privacy and data security concerns.
States like New York are among the first to regulate the use of biometric age verification. A proposed bill would allow establishments like bars and restaurants to rely on the technology, while imposing requirement for how biometric data must be handled.
Age Verification Goes Digital
Many different types of businesses are tasked with “age gating,” the process of asking website visitors to confirm that they are old enough to use the site’s products or services before continuing. Examples include sports betting sites, online alcohol retailers, gaming platforms, social media apps, and cannabis sellers. In many cases, users are simply required to enter their birthdate. Because nothing is done to verify the information provided by the website visitor, age gates are easy to get around.
When operating both online and in person, businesses are increasingly relying on high-tech solutions to conduct customer age verification. Some biometric systems require users to pre-enroll, which can generally be done through a mobile app. Amazon relies on palm recognition while CLEAR uses facial recognition. Both are being used in sports stadiums to allow patrons to bypass having to show their ID to purchase alcohol. In some stadiums, you can even order a beer directly to your seat.
Other age verification technologies don’t require users to submit any information, and instead use neural networks to estimate the age of the person looking at the screen at a checkout. For instance, a system called MyCheckr “takes an image of your face, analyzes that image, and returns whether or not you’re over the ‘challenge age,’” according to a recent Axios article.
New York Biometric Identity Verification Legislation
New York lawmakers are currently considering legislation that greenlights the use of biometric identity verification devices for the purchase of alcoholic beverages and tobacco products. According to sponsors, “Biometric age verification will help consumers and businesses by allowing people to enter their favorite establishments, or make alcohol or tobacco purchases quickly and without having to present photo identification, or even give their names and dates of birth.”
Senate Bill S6656 authorizes a licensee, its agent or employee to determine a person’s age when purchasing alcoholic beverages or tobacco products by use of a biometric identity verification device. It further amends § 1399-cc of the Public Health Law to include biometric age verification as an affirmative defense to the sale of tobacco products to an underage individual.
The legislation defines a “biometric identity verification device” as a “commercial device that instantly verifies the identity and age of a person by an electronic scan of a biometric of such person, via a fingerprint, iris image, facial image, or other biometric, which is referenced against any record described in the bill (license, passports, etc.), where 1.) the authenticity of the record was previously verified by an electronic authentication process, 2.) The identity of the record holder was previously verified through a commercially available knowledge based electronic authentication process, and 3.) The authenticated record was securely linked to biometrics contemporaneously collected from the verified record holder and stored on a centralized, highly secured, encrypted biometric database.
New York City’s Biometrics Law
New York City already regulate the collection of biometric data by commercial establishments.Under New York City’s biometric privacy ordinance, which took effect on July 9, 2021, businesses must post notices and signs at their doors informing customers how their data will be collected. Failing to comply with the notice requirement can result in costly penalties.
New York City’s biometric data privacy ordinance specifically requires any commercial establishment that collects, retains, converts, stores or shares biometric identifier information of customers to disclose such activity by placing a “clear and conspicuous” sign near all of the commercial establishment’s customer entrances. The disclosure must notify customers in “plain, simple language” that customers’ biometric identifier information is being collected, retained, converted, stored or shared, as applicable. New York City has provided a sample sign, which is available here: https://www.nyc.gov/assets/dca/downloads/pdf/businesses/Biometric-Identifier-Information-Disclosure-Sign.pdf
The ordinance also makes it “unlawful to sell, lease, trade, share in exchange for anything of value or otherwise profit from the transaction of biometric identifier information.” Notably, none of the categories of biometric identifier information are excluded from this requirement.
Much like the Illinois Biometric Information Privacy Act (BIPA), New York City’s biometric privacy ordinance establishes a private right of action. A prevailing party may recover damages of $500 for each violation of the notice requirement, as well as for each negligent violation of the prohibition of the sale/sharing of biometric data. For each intentional or reckless violation of the provision prohibiting the sale/sharing of biometric data, damages of $5,000 may be awarded. Courts are also authorized to award a prevailing party reasonable attorneys’ fees and costs, including expert witness fees and other litigation expenses.
Key Takeaway
Biometrics are increasingly being used for age verification. Like all new technology, it will take some time for regulators to catch up. We encourage businesses that elect to use biometric identity verification systems to work with experienced counsel to ensure that you are addressing any potential legal risks and obligations.
If you have questions, please contact us
If you have questions or if you would like to discuss the matter further, please contact me, Dan Brecher, or the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.
What Business Owners Get Wrong Before Meeting a Litigation Attorney
What should you expect when meeting a litigation attorney about a business dispute? You should expect to describe the dispute in your own words, hand over the most important documents, flag any deadlines or immediate threats, and leave with a clearer picture of the problem, what information is still needed, and the likely next steps. […]
Arbitration vs. Litigation vs. Mediation: What New Jersey Businesses Should Know Before Signing a Contract
Arbitration resolves disputes privately before an arbitrator whose decision is usually final, while litigation resolves them in court with full rights of appeal. Whether a business ends up in arbitration or litigation is often decided when it signs the contract, long before any dispute arises. Key Takeaways When facing a contract dispute, carefully consider your […]
Can You Own Part of a New Jersey Business Without a Written Agreement?
Can you own part of a business in New Jersey without a written agreement? Yes, it is possible. Under New Jersey’s Uniform Partnership Act, a partnership can arise when two or more people carry on a business as co-owners for profit, whether or not they ever intended to form one. Ownership doesn’t necessarily depend on […]
Crisis-Proofing Your New Jersey Business: Building a Crisis Response Plan Before You Need One
For New Jersey businesses, crisis preparedness should be viewed as a legal and operational function, not simply an emergency-management exercise. A well-designed crisis response plan can help preserve evidence, protect confidential communications, meet reporting obligations, limit unnecessary exposure, and prevent an already difficult situation from becoming a larger legal problem. Key Takeaways A serious crisis […]
Monmouth County's Next Development Wave: What Developers and Investors Need to Know
Monmouth County is entering a significant new phase of development. For those looking to acquire property or undertake a new project, understanding the market opportunity is only the beginning. The more important question is whether a particular property can actually be developed as contemplated and what approvals, agreements, and other conditions will be required to […]
Are Your Conversations with AI Shielded from Discovery? Courts Are Split
Whether a client’s prompts to a generative AI tool and the documents it produces are protected from disclosure depends on the case type, who claims protection, and whether counsel was involved. In United States v. Heppner, a New York federal judge ruled that a criminal defendant’s communications with an AI platform were protected by neither […]
No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.
Sign up to get the latest from our attorneys!
Explore What Matters Most to You.
Consider subscribing to our Firm Insights mailing list by clicking the button below so you can keep up to date with the firm`s latest articles covering various legal topics.
Stay informed and inspired with the latest updates, insights, and events from Scarinci Hollenbeck. Our resource library provides valuable content across a range of categories to keep you connected and ahead of the curve.
Let`s get in touch!
Sign up to get the latest from the Scarinci Hollenbeck, LLC attorneys!
