Dead People Fingerprint Sales Inspire Novel Florida Privacy Bill

Shortly after his mother’s funeral, Orlando resident Mark Cady-Archilla was confused to receive mail advertising the opportunity to purchase her fingerprint on a piece of jewelry.

Jacqueline Cady took great pains to protect her privacy in life, Cady-Archilla said. He learned months later that the funeral home in charge of her services had scanned her fingerprints and shared them with the personalized keepsake company Legacy Touch, he said. In the aftermath, his experience has triggered a Florida lawmaker to propose extending biometric privacy rights to the deceased.

“The mere idea that they would do that without my mother’s permission or my permission was an absolute assault to me,” Cady-Archilla said.

The Florida bill would regulate how funeral homes collect biometric data, unique and immutable characteristics such as fingerprints, from bodies in their care. The effort is a new twist on growing legislative interest in biometric privacy. Laws in Illinois, Texas, and Washington already provide living residents with specific biometric privacy rights, and Massachusetts regulators have also grappled with how the $16 billion funeral industry should approach fingerprinting of the dead.

State efforts to replicate Illinois’ stringent requirements for how companies treat identifiers such as face scans or voiceprints fizzled elsewhere this year, though state legislatures have included biometric data in broader consumer and health privacy laws. Florida is the first state to contemplate legislation applying some of those principles after death.

Multiple companies allow consumers to order pendants, pocket knives, and other mementos engraved with a loved one’s fingerprint. Legacy Touch, for instance, partners with funeral homes by providing technology to collect and transfer fingerprint scans to the company. The company notes online that the average order of $480 results in a $105 commission for the funeral home.

Collection of such data from a decedent appears to largely fall outside current laws, with funeral associations and other industry players left to recommend best practices. Federal courts have consistently held that privacy rights cease at death, said Kathleen Carlson, a partner at Sidley Austin LLP in Chicago.

“My understanding is that this would be the first law like this and that, in general, there are not specific laws addressing this,” she said.

Written Disclosures

The Florida legislation would require funeral establishments to disclose in writing what data they collect from a deceased person and why, as well as whether that data is sold to a third party. The disclosure would be provided to a legally authorized person, such as a surviving spouse or adult child, who could opt out of the sale of such data.

The measure aims to add consistency to funeral home policies, said state Sen. Linda Stewart (D), who’s sponsoring the bill. Violations would be grounds for discipline under Florida’s existing laws for the death care industry.

“I just didn’t think it was right for us to—really, in a very sad moment in people’s life when they’re having a relative that they’re mourning—have somebody contact them about having a necklace or trinket unless they’re a relative that wanted that,” Stewart said.

Best practices posted online by Legacy Touch state that funeral homes don’t need permission legally to scan fingerprints but should still communicate with families before or after doing so. It’s ultimately up to funeral homes to decide what process they will follow, said Charlie Cole, CEO of Tribute Technology, owner of Legacy Touch as part of its holding company, in an interview.

Cole said he couldn’t comment on specific interactions between a family and funeral home. Cady-Archilla has filed a civil suit against the funeral home that handled his mother’s body.

The Florida Cemetery, Cremation, and Funeral Association declined to comment on the legislation. The Independent Funeral Directors of Florida did not respond to requests for comment.

In Massachusetts, funeral regulators approved a policy in 2018 requiring consent by next of kin or the legal representative for the removal of “personal materials” from a dead human body, including fingerprints or a DNA sample. The Boston Globe noted that year that the debate stemmed from a family upset to learn a decedent’s fingerprints were collected only as they were offered jewelry.

The National Funeral Directors Association recommends that fingerprints be collected only with written consent and provides sample authorization forms, Jessica Koth, director of public relations, said in an email.

Funeral homes trying to support families are in the sticky situation of not upsetting those opposed to prints while not disappointing those who would welcome such keepsakes, Cole said. The grief that follows the death of a loved one means family members may not consider fingerprint mementos until months after a funeral, Cole said.

“We’ve received literally probably 100 times the amount of complaints when the fingerprint is not captured, versus when it is captured when they didn’t know it was going to happen,” he said.

Legal Questions Raised

A growing list of states have included biometric data under broad consumer privacy laws that give people more control over how their data is collected and used. A Florida law taking effect in July 2024 targets large tech companies and requires websites to provide notice for the sale of biometric data, among other provisions.

A few states already have biometric privacy proposals pending for 2024, including Missouri and Massachusetts.

The Florida funeral home bill, unique for its application to the deceased, could also raise legal disputes about what’s considered biometric data. That question has been weighed in cases under Illinois’ Biometric Information Privacy Act, the only state law in effect that allows individuals to sue companies that collect fingerprints, face scans, or similar identifiers without their knowledge or consent.

Whether fingerprint scans used for keepsake jewelry are sufficiently unique to identify someone would likely need to be litigated, Carlson said. Even fingerprints used to scan in and out of work are not 100% unique, she said—and there may be an argument that a scan for jewelry is an image that doesn’t need the same precision.

“Nobody’s testing whether it’s actually correct or not, it’s more sort of the sentiment behind it,” Carlson said, noting it’s unclear to her how a court would view that argument.

Fingerprint mementos are far more of a work of art than biometric data, Cole said. Cady-Archilla, though, said privacy concerns include Legacy Touch’s online statements that prints are stored in perpetuity and that images with their identity removed could be shared with “affiliated technology partners” in limited instances.

State Court Suit

Cady-Archilla said he will push the Florida bill “to protect the dead from the living.” He said he doesn’t want to take away the opportunity for people to purchase fingerprint keepsakes but that grieving consumers need protection.

“When the funeral home came and took my mother’s remains, I handed over to them absolute precious cargo and I expected them to treat her remains with dignity,” Cady-Archilla said. “And whether they just took her fingerprints for record purposes or for selling them to a third party, I should be aware.”

He also filed a complaint in November against Capstone Services Group LLC in Florida state court arguing violations of existing state death care industry laws by its property Allen-Summerhill Funeral Homes and Crematory. The complaint alleges that the funeral home fingerprinted Cady-Archilla’s mother for financial gain and without permission, violating statutes such as a prohibition on funeral professionals making false or misleading statements about their services.

Capstone’s attorney John Cullen, associate at Banker Lopez Gassler P.A., declined to comment. The company filed a motion to dismiss on Dec. 11, arguing the plaintiff failed to “provide adequate factual allegations to properly state his asserted causes of action.”

“Instead, Plaintiff’s causes of action rely entirely on conclusory allegations and ‘buzz words,’” the filing states.