By Alyona Eidinger
As it was reported in the February issue of the Privacy Law Review, Senator Bob Wieckowski introduced SB 1189, or Biometric Information, a measure in the California Senate on February 17, 2022. This bill, partially based on the Illinois’s Biometric Information Privacy Act (“BIPA”), establishes very specific rules for collection, disclosure, and sale of biometric information by a “Private Entity.” The definition of the private entity is very broad and includes “an individual, partnership, corporation, limited liability company, association, or similar group, however organized;” it excludes “a federal, state, or local government agency or an academic institution.”
SB 1189 defines biometric information as “the data of an individual generated by automatic measurements of an individual’s unique biological or behavioral characteristics, including a faceprint, fingerprint, voiceprint, retina or iris image, or any other biological characteristic that can be used to authenticate the individual’s identity.”
SB 1189 permits private entities to “collect, capture, purchase, receive through trade, or otherwise obtain a person’s biometric information” to “provide a service requested or authorized by the subject” or for “another valid business purpose specified in the written policy.” Prior to collection, the private entity must (1) inform in writing about the “biometric information being collected, stored, or used” and “the specific purpose and length of time for which the biometric information is being collected, stored, or used,” and (2) receive from an individual a signed “written release,” which is defined as “specific, discrete, freely given, unambiguous, and informed written consent.” The written release must be a stand-alone consent, not combined with “another consent- or permission-seeking instrument or function.”
SB 1189 prohibits sale, lease, trade, or receiving any profit from the disclosure of a person’s biometric information or using it for advertising.
SB 1189 permits disclosure in 3 situations: (1) with “written release” that authorizes disclosure and contains information about the data being disclosed, the reason for the disclosure, and the recipients of the biometric information; (2) the disclosure “completes a financial transaction requested or authorized by” the individual; and (3) if required by law or pursuant to a valid warrant or subpoena.
SB 1189 mandates a private entity that possesses biometric information to “develop and make available to the public a written policy establishing a retention schedule and guidelines for permanently destroying the biometric information” on or before September 1, 2023.
SB 1189 prescribes a private entity to use a reasonable, industry-specific standard of care to “store, transmit, and protect from disclosure biometric information.”
SB 1189 contemplates the private right of action, allowing for either the statutory damages ($100-$1,000 per day) or actual damages, whichever is greater. In addition, an individual may also recover punitive damages, reasonable attorney’s fees and litigation costs as well as any other relief (including equitable or declaratory) that the court deems appropriate.
The Senate Judiciary Committee passed SB 1189 on April 5 and re-referred the bill as amended to the Senate Committee on Appropriations, which heard it on April 25, 2022.
Committee on Appropriations Hearing Outcome
At the beginning of the hearing, Chair Senator Anthony J. Portantino underscored that the Committee was not going to relitigate the policy of the measures presented on the agenda. Rather, the Committee was going to hear the testimony as to the bills’ fiscal impacts. There were 25 bills on the April 25 agenda, including SB 1189, all of which were suspense file candidates.
The author of SB 1189 waived presentation, and there was no one in the room to testify in support or opposition of SB 1189. However, several members of the public called-in during the hearing. One caller expressed “strong support” of the bill on behalf of the California Council on American-Islamic Relations (CAIR); another caller, representing the National Payroll Reporting Consortium (NPRC), opposed it. Absent any public testimony as to the fiscal impact of SB 1189, Chair Portantino placed the bill on suspense file.
Demystifying “Suspense File”
The suspense file process has been a part of the Committee Rules since the mid-1980s. It is a way to consider the fiscal impact of a measure on the state. The bill’s fiscal impact must meet certain thresholds to trigger a referral to the suspense file. The Committee, “by a majority of the members present and voting, shall refer to the Suspense File all bills that would have a fiscal impact in any single fiscal year (i) from the General Fund (including general obligation bond funds) or from private funds of $50,000 or more; or (ii) of $150,000 or more from any special account(s) or fund(s).” Bills that meet either of the suspense file thresholds will be placed on the suspense file after testimony is taken at a regular-order hearing.
The Committee’s analysis for SB 1189 indicates that although the “cost pressures to the judicial branch” cannot be determined with certainty due to numerous factors influencing the costs, they are estimated to be “in the millions or tens of millions.” The Committee on Appropriations examined the court filings generated by the BIPA litigation to gauge the fiscal impact of SB 1189.
From “Suspense File” to “Suspense Hearing”
Bills placed on the suspense file are then heard and voted on during the so-called suspense hearing. The suspense hearing is a vote-only hearing with no testimony. The bills are heard alphabetically by author. Such hearing occurs before fiscal committees are due to hear and report bills to the Floor. Thereafter, the suspense-file bills either will move on to the Floor for further consideration or will continue to be held in committee and under submission.
Based on the 2022 Tentative Legislative Calendar, last days for the fiscal committees to hear and report to the Floor bills introduced in their house are May 20 and August 12. Therefore, one can expect the Senate Committee on Appropriations to revert to voting on SB 1189 around either of these deadlines.
To put the process in perspective, it is illuminating to consider the details from last year. The Senate Committee on Appropriations conducted suspense hearings on May 20 and August 26 in 2021. There were 357 and 322 bills, respectively, on the agenda for the Committee to consider. On average, the members of the Committee were voting at the speed of approximately 3.5-4 bills per minute!
As SB 1189 now goes “to suspense without objection,” its subsequent fate remains to be determined by the Senate Committee on Appropriations at a later suspense hearing.