Debunking Myths Part 2: Legal Frameworks for Biometrics

Biometric technology has transformed the way we authenticate identity, delivering both convenience and enhanced security. However, like any transformative technology, it has faced scrutiny and generates concern —particularly around the issue of bias, legality, privacy, covert usage and the risks associated with AI. While the concerns are valid, they are often misunderstood or even exaggerated. 

This blog is part of a five-part series dedicated to unpacking and debunking common myths surrounding biometrics, offering clarity on where the challenges lie and how the industry has been addressing them.

This is the second installment, focusing on legal frameworks.

See the other posts in this series:

• Bias
• Template Security
• Device Storage
• Universality

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Myth 1: Biometrics Are Unregulated

One of the most persistent myths is that the use of biometrics exists in a legal vacuum. Critics argue that organizations collecting biometric data operate without oversight, risking widespread misuse.

The Reality: Biometrics are among the most heavily regulated forms of personal data. Around the world, governments have enacted laws to ensure biometrics are handled responsibly. Here are some examples:

• General Data Protection Regulation (GDPR): In the European Union, biometrics are classified as “special category” data, subject to stringent requirements. Companies must demonstrate explicit consent and implement robust safeguards, and there are specific provisions for data residency, requiring that data collected in the EU remain within the region unless stringent transfer mechanisms are in place. Germany, as a GDPR member, often imposes additional local restrictions, reflecting its strong data protection culture.
• Biometric Information Privacy Act (BIPA): In the United States, Illinois leads with its biometric-specific legislation, mandating informed consent, prohibiting data sharing without explicit approval, and providing a private right of action for individuals.
• Canada: Canada’s Personal Information Protection and Electronic Documents Act (PIPEDA) governs biometrics. Organizations must demonstrate a valid purpose for biometric collection, and in some provinces like British Columbia and Quebec, there are stricter local rules. Additionally, data residency requirements in Quebec’s updated privacy laws mandate that data be hosted in secure locations, potentially restricting cross-border data transfers.
• Brazil: The General Data Protection Law (LGPD) mirrors GDPR in many ways, including its treatment of biometrics as sensitive personal data requiring explicit consent. Brazil has stringent data localization requirements, with the National Data Protection Authority (ANPD) monitoring transfers to ensure they meet adequacy standards.
• Australia: Under the Privacy Act 1988, biometrics are considered sensitive information and are subject to higher protection standards. Australia’s data residency recommendations encourage businesses to store sensitive data domestically or justify transfers under strict protocols.

The problem with all these laws is that they are not all exactly the same, complicating efforts by organizations to create a “one-size-fits-all” approach. This patchwork of laws necessitates localized strategies and flexible platforms that can ensure compliance on both a global and local level.

Myth 2: Legal Frameworks Prohibit the Collection and Use of Biometrics

Ironically enough, another persistent myth is that biometric regulations outright ban its collection and use, making it impractical or even illegal to deploy biometric technologies.

The Reality: This myth is fueled largely by the high-profile lawsuits in the United States, especially under Illinois’ Biometric Information Privacy Act (BIPA). These cases have generated headlines and led to confusion, but the lawsuits are not about prohibiting biometrics. Instead, they typically involve claims of violations due to a lack of informed consent, failure to provide proper disclosures, or mishandling of biometric data.

For instance, BIPA does not ban biometric collection but requires organizations to obtain explicit consent, disclose the purpose and duration of data use, and follow retention and destruction schedules. The penalties and settlements often result from companies failing to meet these requirements—not because the law prohibits biometric use altogether.

Globally, biometric laws like GDPR, LGPD, and Canada’s PIPEDA reinforce this principle: biometric data can be collected and used responsibly as long as organizations comply with clear rules regarding consent, purpose limitation, and data protection. In addition, NIST guidelines for authentication as well as sector-specific frameworks as in healthcare often encourage biometrics as a means of enhancing security and efficiency, provided privacy safeguards are in place.

By aligning with these regulations, organizations can collect and use biometrics responsibly while building trust with their users.

Myth 3: Legal Compliance Equals Security

Some argue that adhering to legal frameworks alone is sufficient to secure biometric systems and protect sensitive data.

The Reality: While compliance is essential, it is often not synonymous with security. For example, while data protection laws establish guidelines around collection and usage of personal data, their primary focus is often on enforcement through penalties rather than providing specific technical guidance on how to prevent breaches in the first place. This focus on fines for non-compliance can sometimes lead organizations to prioritize “checkbox compliance” over truly robust security measures and is partly to blame for the continued spate of data breaches that we are seeing.

Achieving meaningful protection of biometrics and any sensitive data requires going beyond the law.  Compliance might keep organizations out of legal trouble, but adopting cutting-edge privacy-enhancing technologies like Multi-Party Computation and Zero-Knowledge Proofs, along with a culture of security ensures the real protection of biometrics and other sensitive data. 

Myth 4: Legal Responsibility Lies Solely with the Data Collector

A common misconception is that only the organization collecting biometric data is responsible for ensuring compliance, leaving partners and technology providers off the hook.

The Reality: Compliance with biometric regulations is a shared responsibility, and many of the global privacy laws clearly delineate the roles and responsibilities of all parties involved in the data lifecycle. In legal terms, these parties are often categorized as controllers and processors, each with distinct obligations.

• Controller: The organization that determines the purpose and means of processing biometric data. Controllers bear primary responsibility for ensuring data is collected, stored, and used in compliance with laws. This includes obtaining consent, informing users about how their data will be used, and ensuring that all processors they work with adhere to legal standards.
• Processor: The entity that processes data on behalf of the controller. While processors don’t determine how data is used, they are still required to follow the controller’s instructions including around deletion and retention procedures and implementing robust security measures to protect the data they handle.

In many jurisdictions, this relationship is formalized through a Data Processing Addendum (DPA). This legally binding agreement outlines the responsibilities of both parties, including the scope of data use, security measures, breach notification protocols, retention policies, and processes for handling data subject requests. DPAs also often include provisions allowing the controller to audit the processor’s operations and ensure compliance. By establishing clear terms, a DPA ensures accountability and protects against misunderstandings or lapses in compliance, making it a critical element of biometric data governance.

Why Legal Frameworks Matter for Biometric Adoption

Legal frameworks are not obstacles to biometric adoption; they are enablers of trust and accountability. By dispelling myths and understanding the realities of biometric regulations, businesses can navigate this complex landscape with confidence. As regulations evolve, so too must the strategies for leveraging biometrics responsibly.

At Anonybit, we believe in responsible use of biometrics and this has been our driving force since inception.  Through our privacy-enhancing biometric solutions, we help organizations meet and exceed global legal requirements, proving that compliance and innovation go hand-in-hand.

For more about how Anonybit helps to comply with data protection laws, see here.