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The Biometric Privacy Revolution: Legal and Practical Considerations

Streams live on Monday, March 23, 2020 at 01:00pm EDT

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Course Information

Time 60 Minutes
Difficulty Intermediate

Course Description

In recent years we have seen an explosion in the growth of private and public uses of biometric information for a wide variety of purposes. While individuals may willingly or unknowingly share their biometric data on a daily basis, currently there are few laws specifically regulating biometric collection and use. As technology rapidly evolves, companies are presented with an array of potential commercial opportunities and a dearth of guidance when it comes to developing compliant policies and procedures. At the same time, individuals often do not know who may have their biometric information and what, if any, remedies are at their disposal.

The Illinois Biometric Information Privacy Act (“BIPA”) is the most high-profile U.S. law in this space, with hundreds of lawsuits filed to date for alleged violations. Courts are just beginning to provide insights as to how the law should be interpreted. Meanwhile, city, state, federal, and foreign governments are considering a myriad of laws related to biometrics; so far these efforts have met with varying degrees of resistance and success.

This course, presented by Melinda McLellan and Robyn Feldstein, will address legal and practical issues concerning biometrics, surveying existing and proposed laws and regulations and offering pragmatic guidance for companies that seek to use biometric information for security and commercial purposes.



Learning Objectives:

  1. Review what constitutes a “biometric identifier” and explore the evolving uses of biometric information for both commercial and law enforcement purposes
  2. Examine the legal and regulatory landscape governing the collection, storage, and use of biometric information, including the impact of class-action lawsuits brought under Illinois Biometric Information Privacy Act and proposed federal, state, and local legislation
  3. Assess emerging consumer sensitivity to biometric privacy issues with reference to domestic and international use cases and new frontiers in the exploitation of biometric data
  4. Identify steps businesses may take to comply with existing regulations and limit legal risks when seeking to use biometric information in the commercial context 

Credit Information

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Faculty

Melinda L. McLellan

BakerHostetler

Melinda McLellan is a seasoned privacy and cybersecurity law advisor whose practice focuses on the regulation of emerging technologies, compliance with evolving U.S. state and federal privacy legislation, and cross-border data protection matters. As co-leader of the firm’s EU General Data Protection Regulation (GDPR) initiative, Melinda works with multinational clients to identify, evaluate, and manage the myriad of compliance obligations associated with corporate privacy and information security practices. Her broader practice includes advising on a wide variety of privacy and data security issues, including the use of biometrics, securing the Internet of Things, implementation of blockchain technologies, cybersecurity threats to the financial services and energy sectors, autonomous vehicles, genetic privacy, artificial intelligence, Big Data, information security incident response, and negotiating complex tech transactions.

Select Experience:

  • Advises on compliance with international data transfer restrictions and data localization requirements, including through the implementation of cross-border transfer mechanisms such as the EU-U.S. Privacy Shield framework, standard contractual clauses, intercompany agreements, and binding corporate rules.
  • Developed and implemented EU General Data Protection Regulation (GDPR) compliance programs for numerous U.S. and international organizations, including GDPR applicability analysis, data mapping, data transfer mechanisms, consent mechanisms, “right to be forgotten,” data security assessments, breach response programs, selection of Data Protection Officers, and employee training.
  • Advises companies on new requirements under the California Consumer Privacy Act (CCPA), including by developing broad-based compliance strategies to address other pending state and federal privacy legislation.
  • Counsels clients on regulatory compliance strategies and best practices for private-sector use of cloud computing solutions, biometric authentication, facial recognition technology, geolocation tracking systems, mobile applications, behavioral marketing tools, social media platforms, data analytics services, and other emerging technologies. 
  • Manages complex technology transactions on both the vendor side and the customer side, drafting and negotiating multiparty contracts and outsourcing agreements from the RFP through follow-up compliance assessments.
  • Counsels clients on the development and implementation of enterprise-wide privacy and information security programs, including by creating employee privacy training modules and drafting company codes of conduct, policies, standards, procedures, and guidelines related to the protection of personal data.


Robyn M. Feldstein

Baker & Hostetler LLP

Robyn maintains a diverse litigation practice with a focus on the areas of electronic discovery, privacy and data protection, and complex commercial litigation. She brings a holistic view to the matters on which she works, and provides logical yet creative solutions to complex problems. Robyn is also a contributor to the Data Privacy Monitor, staying on top of developments in privacy, primarily the area of biometrics.

Select Experience
  • Responsible for a variety of litigation matters in connection with BakerHostetler's representation of Trustee Irving H. Picard for the SIPA liquidation of Bernard L. Madoff Investment Securities LLC, focusing on the investigation of and litigation against corporate entities and feeder funds in connection with the SIPA Trustee's efforts to recover funds for the BLMIS estate.
  • Works with in-house counsel, IT managers and outside consultants on document preservation and discovery management in data breaches and security incidents, as well as in resultant class actions and investigations.
  • Develops regulatory compliance strategies and implements best practices around broad data privacy issues, including those relating to biometric authentication, wearables, social media platforms, and other nascent technologies.

Experience

  • Responsible for a variety of litigation matters in connection with BakerHostetler's representation of Trustee Irving H. Picard for the SIPA liquidation of Bernard L. Madoff Investment Securities LLC. Focusing on the investigation of and litigation against corporate entities and feeder funds in connection with the SIPA Trustee's efforts to recover funds for the BLMIS estate.
  • Works with in-house counsel, IT managers and outside consultants on document preservation and discovery management in data breaches and security incidents, as well as in resultant class actions and investigations.
  • Develops regulatory compliance strategies and implements best practices around broad data privacy issues, including those relating to biometric authentication, wearables, social media platforms and other nascent technologies.
  • Member of BakerHostetler's Discovery Management team, which coordinates, develops and integrates numerous cutting-edge commercial and proprietary systems to manage discovery in numerous litigations.
  • Involved in various putative class actions alleging violations of the Illinois Biometric Information Privacy Act based on employers’ alleged use of fingerprint or other scanning technology for timekeeping and security purposes.
  • Counsels fashion brands on international trademark filings.
Recognitions
  •  New York Metro Super Lawyers "Rising Star" (2017 to 2019)
News 

• 12/22/2014
Bloomberg's article "Madoff Victims to Get $322 Million in Trustee Payout" acknowledges BakerHostetler attorneys at the announcement of fifth distribution plans
• 11/18/2014
Reuters reports on further BakerHostetler success reaching settlements boosting the total recovery of funds stolen by Madoff to nearly $10.5 billion
• 11/17/2014
CNBC reports on BakerHostetler and the Madoff Recovery Initiative in article Madoff Recoveries Top $10 Billion With New Settlement, "… an amount virtually no one thought possible"
• 11/17/2014
The Associated Press reports on BakerHostetler and the Madoff Recovery Initiative recoveries of $10.5 billion
• 5/5/2014
BakerHostetler talks with USA Today about the SIPA Trustee's fourth pro rata interim distribution; states Madoff Recovery Initiative nears $6 billion in distributions to allowed claimants
• 1/7/2014
BakerHostetler's settlement with JPMorgan Chase and the ongoing Madoff Recovery Initiative Discussed on National Public Radio's All Things Considered
• 2/15/2013
BakerHostetler appears on NPR's All Things Considered to discuss Madoff Recovery Initiative; host Robert Siegel interviews SIPA Trustee Irving Picard and his Chief Counsel David Sheehan
• 2/12/2013
Madoff Recovery Initiative surpasses $5 billion in distributions to allowed claimants; CNBC's Scott Cohn discusses the latest recovery with BakerHostetler's SIPA Trustee Irving Picard and his Chief Counsel David Sheehan
• 12/10/2012
Madoff Recovery Initiative Marks Fourth Anniversary … Moves into Fifth Year Still Building Recovery Momentum
• 9/21/2012
BakerHostetler's work recovering more than half of the losses in the Madoff Ponzi scheme featured on WNYC in an interview on The Brian Lehrer Show
• 9/20/2012
Press Release: Second Interim Distribution of Recovered Funds to Madoff Claim Holders
• 6/25/2012
Press Release: United States Supreme Court Denies Certiorari, Upholding Net Equity Decision in BLMIS Liquidation
• 1/5/2012
The Wall Street Journal showcases BakerHostetler and the "unprecedented magnitude" of the global recovery efforts in the article "The Madoff Liquidation, Three Years Later"
• 10/4/2011
Press Release: Initial Interim Distribution of Recovered Funds to Madoff Claims Holders

Articles

10/16/2019
McLellan, Gaither, McCurrach and Feldstein Author Article on Wearable Devices in Pro Sports

Blog Posts

• 4/15/2019
In BIPA's Wake, a Wave of New Biometric Privacy Proposals
• 12/17/2018
Wearables in The Arena: The Shifting Legal Landscape Governing Fitness Trackers in Professional Sports

Community

 United Jewish Appeal
 New York Cares
 Washington University in St. Louis: Alumni Association
 The Dalton School, Manhattan: Alumni Association

Pro Bono

 Involved in the BakerHostetler New York office partnership with Her Justice, representing low-income women living in New York City in the obtainment of child support, custody, divorce, and other legal assistance.
 Seeking special immigrant juvenile status on behalf of a child in proceedings before the United States Immigration Court.
 Worked with a nonprofit organization to address education issues facing homeless children in New York.
 Assists the American Constitution Society in various research and policy-related matters.