Policy Statement Sets Out a List of Examples of Practices the FTC Will Scrutinize to Determine Whether Companies Using Biometric Information Comply with Section 5 of the FTC Act
SUMMARY
On May 18, 2023, the Federal Trade Commission (the “FTC”), by a 3-to-0 vote, published a policy statement (the “Policy Statement”) on biometric information and Section 5 of the FTC Act (available here).1 Section 5 of the FTC Act in relevant part directs and empowers the FTC to prevent persons, subject to certain exclusions, from “using unfair methods of competition in or affecting commerce and unfair or deceptive acts or practices in or affecting commerce.”2 The Policy Statement defines the term “biometric information” for the FTC’s purposes, recounts the FTC’s extensive history regulating biometric information, highlights the potential dangers to consumers associated with the use of biometric information, and lists seven examples of potentially deceptive or unfair practices the FTC will scrutinize to determine whether companies’ collection and use of biometric information complies with Section 5 of the FTC Act.3 The FTC’s list of
examples is intended to be illustrative rather than exhaustive, and the Policy Statement advises businesses to carefully review the list of examples and cease any current uses of biometric information or biometric information technologies that fall within such examples. Since the publication of the Policy Statement, the FTC has noted several enforcement actions that involved biometric information.
