Canceling a hacked bank account is simple enough, but a breached fingerprint isn't replaceable with a call to a 1-800 phone number. 

But not everyone may know when their biometric data falls into the hands of an unauthorized party. Only 16 states—Arizona, California, Colorado, Delaware, Illinois, Iowa, Louisiana, Maryland, Nebraska, New Mexico, New York, North Carolina, South Dakota, Wisconsin, Wyoming and Washington state—require notification if a resident's fingerprint or other biometric information is breached.

Still, while biometric data is only listed in roughly one-third of the nation's data breach notification laws, lawyers say more may add the term to their law given the increasing number of high-profile data breaches that are grabbing the public's interest.

"In this age of hearing about big data breaches, I think it's natural that the states continue to review and amend their data breach notification laws," said Alston & Bird partner Larry Sommerfeld, a former leader of the Department of Justice's Computer Crime and Intellectual Property Unit. "It's something we all see in the news and [email] mailboxes and the technology is continuing to evolve."

State legislators may not only be pushed by the news, but also by the fact that more companies are collecting biometric data about residents and citizens than ever before.

"I think technology has changed, so the use of biometric information in connection with authenticating identity has grown as a business practice," said Chicago-based Ice Miller partner Reena Bajowala.

Dominique Shelton Leipzig, Perkins Coie's privacy and data management practice co-chairwoman, added that, "Biometrics is dealing with newer forms of technology that [are] being developed and honed with things like artificial intelligence, machine learning and deep learning. I think this increased interest in all of those areas is leading to individuals and consumers to require more transparency."

Leipzig also noted that there's a "heightened awareness of privacy and security from consumers and individuals" due, in part, to such laws as the General Data Protection Regulation in Europe.

Meanwhile, Texas, Illinois and Washington have gone beyond amending their data breach notification laws to enacting laws specifically regulating the collection and sharing of their residents' biometric data. 

In June, Texas Governor Greg Abbott signed HB 4390 into law, amending the state's data breach notification law and creating an advisory council to study and develop recommendations about data privacy laws.

Before HB 4390, Texas businesses were required to report any possible breaches as soon as reasonably possible to the victims. The new bill, however, has a timing requirement stating that all individuals must be given notice within 60 days whenever a breach has occurred.

The new bill also requires the Texas Attorney General to be notified whenever a business notifies at least 250 Texas residents. The deadline for notifying the AG is the same (within 60 days of identifying the breach), and businesses must also include a detailed description of what happened during the breach or use of sensitive personal information acquired in the breach; the number of residents affected; measures taken; and information about whether law enforcement is investigating the breach. The bill's amendments to data breach notification law take effect on Jan. 1, 2020.

The second part of the bill, Section 2, creates the Texas Privacy Protection Advisory Council, charging the group to study data privacy laws in Texas, other states and in relevant foreign jurisdictions. The council will report its findings and recommendations on data privacy and protection by September 1, 2020.

Though few states have followed those Texas and the others, Lewis Brisbois Bisgaard & Smith data privacy and cybersecurity partner Elizabeth Dill said state legislators updating their data breach notification laws to include biometrics is an indication legislators are examining biometric data collection more closely.

"What we have seen as states have expanded this definition of personal information is that they are paying increased attention to protection of more information," she said. "There are a lot of different types of information that can be used to identify individuals and states are becoming more of an advocate to protect their citizens' data."

Indeed, Drinker Biddle & Reath partner Justin O'Neill Kay noted San Francisco and Oakland, California, and Somerville, Massachusetts, have banned local authorities from using facial recognition technology over concerns regarding identification accuracy and to protect residents' privacy.

"There's a lot of interest around it and not all of the news about it has been good and I think when you combine all those factors, it's a good storm for more legislation," he said.