This post is an update. Read the original post here.

We previously reported on the United States Patent and Trademark Office (“USPTO”) announcement that in Spring 2022 parties filing trademark applications would have to provide biometric data and other personal information to a private company, ID.me. These requirements raised privacy issues as well as concerns over inaccuracies with facial recognition technology, particularly for people of color, and the disproportionate impact on marginalized communities. While the USPTO’s decision, along with the earlier use of ID.me by state and federal agencies seemed to go without much notice, the plans by the Internal Revenue Service (“IRS”) to begin requiring identity verification in the Summer of 2022 captured the attention of the media and watchdog groups and raised bipartisan concerns in Congress as tax season began.

On February 8, 2022, the IRS announced that it would abandon its plan to require video selfies for taxpayers looking to access their tax records online. The following day ID.me said the facial recognition requirement in its identity verification software would become optional for U.S. and state government agency use and that, beginning March 1, 2022, individuals could delete their selfie or photographic data that had already been captured. The USPTO is said to be reevaluating its options going forward.

It remains unclear how identity verification will evolve in the legitimate fight against actual fraud, and there are mixed signals from both ID.me and U.S. agencies about their plans in the days ahead. In the meantime, privacy advocates, Congress and investigative journalists are taking a closer look at ID.me and the business practices of similar offerings.

However, the genie is out of the bottle as technological advances result in further invasion of personal privacy and the potential for bias remains unresolved. Lutzker & Lutzker will continue to address privacy issues and counsel our clients on best practices in this evolving landscape.