As security and student identification become more complicated issues, Florida has moved to prohibit facial recognition or voice pattern technology from being used as solutions. Citing privacy concerns, Florida lawmakers proscribed collection of biometric data from students and their families.

Joining a growing number of state legislatures concerned about school districts collecting biometric information on students, Florida recently became the first state to implement a ban on the collection of its students’ biometric data. Senate Bill 188, signed into law on May 12, 2014, prohibits schools and districts from collecting, obtaining, or retaining, any biometric information—specifically fingerprints, hand scans, retina or iris scans, voice prints, and facial geometry scans. Fla. Stat. § 1002.222(1)(a) (2014).

In additional to biometric information, the legislation prohibits the collection of political or religious affiliation and voting history while beginning to phase out the collection of social security numbers. It applies not just to students but also to parents and siblings of students and puts Florida at the forefront of an issue confronting state legislatures across the nation. Legislative responses to these concerns (real or perceived) regarding student privacy and the retention of personally identifiable information have largely fallen in to two camps.

Outright Bans. While Florida is the first state to enact a total ban on the collection of this information, it is not the first to consider doing so. In March of 2013 the Maryland Senate proposed legislation that banned the collection of students’ biometric information throughout the state. After an amendment limited the ban to a single school district, the bill unanimously passed the Maryland Senate before the district voluntarily stopped collection biometric information. S.B. 855, 2013 Leg., Reg. Sess. (Md. 2013). Additionally, legislation currently working through the New Hampshire House would bar the state from collecting biometric information—as well as 16 other categories of information—from students for any reason. H.B. 1586, 2014 Leg., Reg. Sess. (NH 2014).

Guardian Consent. Other states have proposed or enacted regulations requiring advance notice and consent before any biometric information can be collected. Illinois, Louisiana and Arizona require written permission be provided by a legal guardian—with Arizona requiring permission 30 days in advance—prior to collection of any biometric information. See Ill. Comp. Stat. 5/34-18.34(b)(1) (2009); La. Rev. Stat. Ann. § 100.8(B)(2) (2010); Ariz. Rev. Stat. Ann. § 15-109 (2008). Proposed or presently pending legislation in New York and Wisconsin also contain identical requirements. See S.B. 3119, 2013-14 Gen. Assemb., Reg. Sess. (NY 2013); H.B. 616, 2013-14 Gen. Assemb., Reg. Sess. (Wisconsin 2014).

Even in states where biometric information is not being collected from students, some legislators feel, as did the primary sponsor of the Wisconsin legislation, that they have a responsibility “to students and their families to be proactive and address the issue of biometric data.” Moreover, as states continue to take up this issue, districts are naturally becoming less likely to invest in technology or to start pilot programs that rely on the collection of biometric information.

If you have questions about biometric information, the legislative changes discussed in this alert, or other privacy-related issues, please contact Womble Carlyle attorney Ted Claypoole.

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WCSR 32626577