Protecting the dead from the living

January 18, 2024/Products, Regulations/

According to this recent article from Bloomberg Law there are laws in Illinois, Texas, and Washington that already provide living residents with specific biometric privacy rights. According to the same article, Florida will be looking at instituting those rights to the deceased when their legislative members meet in 2024.

The same article also makes this statement, “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.”

One might ask what this has to do with death care, funeral, and cremation services. The issue that has came to the forefront is that of taking fingerprints, locks of hair, and possible other identifiable items from the deceased by the funeral home for potential DNA or keepsake products that can be made available to the family at a later date.

The question the consumer public is asking is “Does a death care provider have the right to do this without expressed permission from the deceased or their family?”

Again, according to the article, “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.”

Related — Here is a partial text version of the law to be introduced into the Florida legislature.

Tom Anderson
Funeral Director Daily

Funeral Director Daily take: This is a very good article that gives different sides to an issue that is, or soon will be, pressing in our profession. The article makes note of a civil action already filed because of this lack of disclosure to the next of kin. And, as funeral customs continue to evolve I can envision these types of keepsake products being sold more often.

And, while state legislatures will soon be considering this issue which could lead to 50 different rules, I would argue that there should be some consistency on the issue nationwide so that keepsake suppliers have a common platform on how they can offer their products.

I might even go so far as believing the National Funeral Directors Association (NFDA) should get ahead of this issue in finding a national (through Congressional laws) solution rather than letting all 50 states makes their own decisions. I’m not a legal expert and don’t even know if that can be done, but if it can, it should be looked into. As a member of NFDA I took a quick glance at the NFDA Legal & Compliance web page and could find no mention of this potentially looming issue.

Here is some more information taken directly from the article:

“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. . . . . . 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.”

I suggest reading the article. It is a very good and knowledgeable article that is pertinent to our profession at this time.

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