By Ellen Y. McClain
Travel and trade, critical elements of our economy, are currently facing significant challenges.
Biometrics offer opportunities to facilitate recovery from COVID-19, and innovate the way consumers make retail purchases or conduct their banking transactions or travel, offering passengers a touchless experience at some U.S. airports. Over the past decade, biometric data technology, including facial recognition, has been evolving at an amazing pace, leaving U.S. law and policy lagging behind.
With no comprehensive national law governing the commercial collection and use of biometric data, except to combat unfair or deceptive practices, some states bridged this gap by defining personally identifiable information to include biometric data or imposing data breach notice requirements. A handful have enacted laws specifically limiting the collection and use of biometric data and imposing requirements on companies with respect to retention, storage, and sharing. Two states’ laws not only include a private cause of action, resulting in a proliferation of lawsuits, but allow plaintiffs to sue companies located in a different state. This legislative patchwork makes it difficult for companies to know what the respective rules are for the collection, use, retention, sharing, and storage of biometric data. The new administration should seek a national law that balances protecting data subjects’ privacy with responsible requirements for companies without stifling innovation or imposing onerously expensive obligations.
For trade, pre-screening technology better enables both the government and private sector to, within the sheer volume of imported goods, identify the flood of counterfeits and merchandise that violate health, safety, and national security laws. Alarming numbers of counterfeits are entering the country undetected and customs resources are insufficient to combat the threat. Holding non-traditional parties accountable for their role in trafficking in illegal goods is a recommended step, but legislation is needed to transform and modernize customs laws along the lines of the 21st Century Customs Framework. Expanding authorities for the use of technology to collect advance electronic data to pre-screen and detect prohibited merchandise and more significantly prevent shipment at the point of origin, similar to cargo pre-screening, will have the greatest impact. Such legislation would result in more effective enforcement with enormous cost savings to the Government.
Ellen Y. McClain formerly served as Deputy Assistant Secretary (Transborder Policy) DHS and is currently Vice President of InterVISTAS Consulting.