With former President Donald Trump soon to return to the White House for a second term, and Republicans in control of the Senate, their approach to regulating the use of biometrics is likely to follow a few key themes that align with broader conservative priorities, such as consumer privacy, economic competitiveness, and technology innovation.
Given the Republican emphasis on privacy, business freedom, and innovation, they will likely push for policies that balance consumer protections with economic interests, while avoiding excessive regulation that could hamper technological development.
Republicans have increasingly emphasized the importance of individual privacy rights and informed consent in the context of biometric data collection, especially as the use of biometrics becomes has become more widespread. Republicans are likely to support regulations that focus on transparency and consumer control, requiring tech companies to clearly disclose how biometric data is collected, stored, and used, and providing consumer opt-in options, especially in commercial contexts like apps and devices. This would allow consumers to make informed decisions about whether they want to engage with technologies that use facial recognition.
As biometric technology increasingly appears in consumer-facing applications, Republicans will likely be inclined to push for policies that require parental consent for children under a certain age before their biometric data is collected, particularly in apps that target younger users.
Conversely, however, Republicans are generally wary of overregulating the tech sector, which they see as a key driver of economic growth and innovation. They would likely resist broad federal regulation that they view as stifling innovation or hampering the ability of U.S. companies to remain competitive globally, especially in relation to China and other nations with less stringent tech regulations.
With Republicans typically emphasizing states’ rights, they may very well push to preempt state laws with a national standard because of what is viewed as a patchwork of regulations that are seen as complicating businesses’ operations across state lines, such as the California’s Consumer Privacy Act (CCPA) and Illinois’ Biometric Information Privacy Act (BIPA).
While Republicans might support some form of federal legislation to regulate biometric data collection, they would likely focus on balancing privacy concerns with protections for businesses, particularly Big Tech firms.
Republicans may also back privacy regulations that require companies to limit the collection of biometric data on users to only what is necessary for their business purposes, which would limit companies’ ability to collect unnecessary biometric data, and to implement strong data protection measures to prevent IT security breaches.
Earlier this year, Sen. Maria Cantwell, the Democratic chair of the Senate Committee on Commerce, and Republican Rep. Cathy Rodgers, chair of the House Committee on Energy and Commerce, announced the American Privacy Rights Act (APRA), which would have returned control of personal data to American consumers.
Republicans thus may support provisions that offer flexibility for businesses, especially smaller companies, when it comes to compliance with biometric privacy regulations, and at least some may advocate for safe harbor provisions that protect businesses from liability if they follow certain industry best practices for biometric data collection and use. When APRA underwent revisions earlier this year to address Republican concerns, it was updated to include provisions requiring express consent for collecting biometric and genetic data, reflecting a compromise to ensure consumer protection while considering business interests.
When it comes to the use of biometrics in law enforcement and national security, Republicans have tended to be more supportive of the use of biometric technologies, which could translate into more lenient regulations for facial recognition and other biometric technologies when used for public safety, law enforcement, and national security purposes such as surveillance or identification of suspects in criminal and counterintelligence investigations, missing persons cases, and national security threats, so long as such use is properly regulated and accountable.
While supporting law enforcement uses, Republicans may also advocate for policies that include checks on how biometric data is used by government agencies, particularly regarding civil liberties and the potential for abuse.
Similarly, there is growing bipartisan concern over the potential for racial bias and discrimination in facial recognition systems, especially as studies have shown that these systems can have higher error rates for people of color, women, and other minority groups. Republicans, therefore, might align with Democrats on ensuring that facial recognition technology is used ethically and does not perpetuate discrimination.
Republicans also have been more willing to allow industry to self-regulate, especially in the tech sector, rather than relying on heavy-handed government regulation. This could mean encouraging companies to voluntarily adopt best practices for biometric data security, transparency, and consent, while providing incentives for compliance.
While Republicans are likely to take a more market-driven approach to regulation, they may find common ground with Democrats on issues like consumer protection, data security, and limiting discrimination or bias. There may also be bipartisan support for increased transparency and accountability for companies using biometric technologies.
Finally, when it comes to the vaunted but long problematic biometric exit tracking system for all travelers to the United States, Trump repeatedly said during his 2020 reelection bid that he wanted the system completed and deployed. His January 27, 2017, Executive Order specifically called for its “expedited completion.” Trump also called for a national biometric ID program for non-citizens entering and leaving the U.S.
The Department of Homeland Security (DHS) has been working on a biometric exit system to verify the identities of travelers exiting the country, thereby improving the detection of visa overstays and strengthening immigration enforcement, but it remains incomplete and does not cover all departure points across the country. The principal sticking points have been over concerns regarding infrastructure, staffing, and the need for consistent data collection across all departure points remain. Republicans are likely to push for completion of the system.
In summary, Republican-led action on regulating biometric technologies will likely involve an approach that balances individual rights with national security and law enforcement needs, while minimizing federal overreach. It will be a combination of encouraging industry standards, enabling innovation, and providing some level of oversight to protect consumers from misuse of biometric data.
Article Topics
biometric exit | biometrics | data protection | digital identity | national security | regulation | standards | U.S. Government
