The Office of the Privacy Commissioner (OPC) has released a consultation paper on the regulation of biometrics in Aotearoa New Zealand. The OPC is calling for submissions in response to growing concern around the use of biometric technology, following the OPC’s release last year of a position paper on how the Privacy Act 2020 currently regulates biometrics.
The paper defines biometric information as information about an individual’s biological or behavioural characteristics: for example, a facial image, a fingerprint pattern or a digital template of that image or pattern.
Technology relying on the use of biometric information is becoming more and more prevalent, as agencies seek to benefit from the use of hard-to-emulate biometric information to – at least ostensibly – improve security and remote access to services.
However, as the paper acknowledges, the reliance on biometric information brings with it many challenges, including:
In the New Zealand context, the sensitivity of biometric information is specifically relevant to Māori, who have inherent whakapapa links to biometric data (particularly facial moko). The principle of manaakitanga as it applies to biometric information adds an extra layer of obligations on agencies to ensure that collection and use of data will uphold mana and avoid stigmatisation.
Biometric information is considered ‘personal information’ for the purposes of the Privacy Act. Accordingly, the collection, use, disclosure and storage of personal information is governed by the information privacy principles (or ‘IPPs’).
The OPC considers biometric information to be ‘sensitive’ in nature. While the Privacy Act does not expressly distinguish between personal information that is ‘sensitive’ and other classes of personal information, the fact that personal information is considered ‘sensitive’ can be relevant in the context of a number of the IPPs. These include:
While the OPC’s position paper and the existing law is a good starting point, the OPC thinks that it is no longer enough on its own, and that further regulatory action is required. Ideally, further regulation would deliver clarity for agencies and individuals on their rights and obligations, and would implement a more appropriate framework for the use and collection of biometric information so as to ensure that it is subject to safeguards that are appropriate in light of its inherently sensitive nature.
The OPC is seeking feedback on the following proposals:
If you do use, or intend to use, biometric technology in your business, or you have concerns around how your biometric information might be collected or stored, take this opportunity to contribute to the future regulation of biometric technology as it develops and adapts to the particular circumstances of Aotearoa: anyone can submit a response to the consultation paper.
Submissions on the consultation paper are due by Friday 30 September 2022.
In any case, anyone using or intending to use biometric technology in their business needs to be aware of not only the potential for regulatory change, but also the application of existing legislation and regulation, and the OPC’s approach to regulation, in the Aotearoa New Zealand context. Like any project which involves the deployment of new technology or the collection of new personal information, a project which deploys biometric technology or which will result in the collection or processing of biometric information requires careful analysis, so as to ensure compliance with existing laws, and to future proof the project against likely changes to the law.
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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.
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