Picture this: A nurse practitioner in Chicago logs into her laptop to take a high-stakes certification exam. Within seconds, facial recognition software scans her features, keystroke analytics begin tracking her typing patterns, and eye-tracking technology monitors where she looks on screen. Meanwhile, audio and video recording capture every moment of her three-hour exam session. She’s not just taking a test, she’s participating in a comprehensive biometric data collection exercise.
This scenario isn’t science fiction. It’s happening right now in credentialing programs across the globe, and it’s creating a potential legal minefield.
The AI Revolution in Testing Has Already Arrived
The transformation of credentialing exams through artificial intelligence has been swift and dramatic. What started as simple webcam monitoring has evolved into sophisticated biometric surveillance systems that promise to eliminate cheating while making exams more accessible. These AI-powered proctoring platforms can detect everything from suspicious eye movements to unusual typing rhythms, analyze facial expressions for signs of stress or deception, and even flag background noise that might indicate unauthorized assistance.
The appeal is obvious. For credentialing bodies managing thousands of candidates across different time zones, AI proctoring offers scalability that human proctors simply can’t match. Organizations can maintain exam security while allowing candidates to test from home, expanding access to rural areas and reducing costs. It’s a win-win scenario, until you consider the legal implications.
The problem is that these sophisticated monitoring systems don’t just collect data; they collect biometric data. And biometric data, unlike a password you can change or an email address you can abandon, is permanent and uniquely tied to an individual’s physical characteristics. Once compromised, it can’t be reset.
Understanding the Biometric Data Landscape
Not all data collection is created equal in the eyes of privacy law. When an AI system captures your webcam feed to verify your identity, it might be collecting “biometric identifiers” which are unique physical characteristics that can be used to identify you. This includes obvious things like fingerprints and facial geometry, but it also extends to less obvious biometric markers like typing patterns, voice characteristics, and even the way you move your mouse.
The legal definition of biometric data varies significantly depending on where you are. Illinois’ Biometric Information Privacy Act (BIPA) requires businesses to receive informed consent before collecting biometric data and holds third parties handling data to the same compliance standards. This means that if your credentialing program uses an AI proctoring vendor, both you and that vendor could be liable for BIPA violations.
What makes this particularly challenging for credentialing programs is that the line between legitimate identity verification and biometric data collection is often blurry. When does a photo used to confirm identity become facial recognition data? When does keystroke monitoring for authentication become biometric profiling? These aren’t just technical questions, they’re legal ones with potentially expensive answers.
The Illinois BIPA Problem That Won’t Go Away
If you’re running a credentialing program and you’ve never heard of BIPA, it’s time to pay attention. Illinois’ Biometric Information Privacy Act has become the gold standard for biometric privacy protection, and it comes with teeth that have already bitten several major companies for millions of dollars.
BIPA doesn’t just require consent, it requires informed written consent before any biometric data is collected. This means candidates must understand exactly what biometric information you’re collecting, how you’re using it, and how long you’re keeping it. The law also requires you to publish a publicly available retention and destruction policy and prohibits you from selling or disclosing biometric data to third parties without consent.
The penalties for getting this wrong are severe. BIPA allows for damages of $1,000 to $5,000 per violation, and with class action lawsuits, these numbers can quickly reach into the millions. Even more concerning for credentialing programs, every individual whose biometric data is improperly collected could represent a separate violation. Fortunately, what constitutes a single violation has been constrained, the damages can still ultimately be quite high.
Here’s what makes BIPA particularly tricky for credentialing exams: the law applies to any organization that collects biometric data from Illinois residents, regardless of where the organization is based. If you’re a national certification body with candidates in Illinois, you need to be BIPA-compliant for all of them.
GDPR and the Global Privacy Challenge
While BIPA gets most of the attention in the United States, the European Union’s General Data Protection Regulation represents an even more comprehensive challenge for global credentialing programs. Under GDPR, biometric data is classified as “special category data,” which requires the highest level of protection.
This means that credentialing programs serving EU residents must obtain explicit consent, conduct Data Protection Impact Assessments for high-risk processing, and provide clear privacy notices explaining exactly how biometric data will be used. Candidates have the right to request deletion of their data (the “right to be forgotten”) and the right to data portability.
The global reach of GDPR means that even U.S.-based credentialing programs must comply if they serve EU residents. With potential fines of up to 4% of global annual revenue or €20 million (whichever is higher), GDPR violations can be business-threatening for organizations of any size.
The Expanding Patchwork of State Laws
At least ten U.S. states have new comprehensive privacy laws taking effect in 2025 plus several more (e.g., Indiana, Texas, Montana) in 2026, each treating biometric data as “sensitive” and often requiring opt-in consent. This creates a complex compliance landscape where credentialing programs must navigate different requirements depending on where their candidates are located.
Texas and Washington also have broad biometric privacy laws on the books, but neither creates a private right of action like BIPA does. In addition, California, Colorado, Connecticut, Utah, and Virginia have passed comprehensive consumer privacy laws that expressly address biometric data. Each of these laws has slightly different definitions of biometric data, different consent requirements, and different penalties for violations.
In Washington, the Washington Biometric Identifiers Law (RCW 19.375) permits commercial use but only after giving notice and obtaining consent or offering a meaningful opt-out. Meanwhile, the 2023 My Health, My Data Act offers protections similar to BIPA for personal health data not covered by HIPAA. This is particularly relevant for healthcare credentialing programs, which may fall under both biometric privacy laws and health data protection requirements.
The challenge for credentialing programs is that compliance isn’t just about following the most restrictive law, it’s about understanding how different laws interact and ensuring that your practices meet the requirements of every jurisdiction where you have candidates.
The Trust Factor: Beyond Legal Compliance
While legal compliance is crucial, there’s an even more fundamental issue at stake: trust. Credentialing programs exist to validate competence and maintain professional standards. When candidates feel that their privacy isn’t being respected or that their biometric data isn’t being handled responsibly, it undermines the credibility of the entire credentialing process.
Consider the candidate experience from a privacy perspective. You’re asking someone to submit to comprehensive biometric monitoring in order to earn a credential that may be essential for their career. They’re trusting you not just with their professional future, but with their most personal data—biometric identifiers that they can never change if compromised.
This trust is fragile and, once broken, difficult to rebuild. High-profile data breaches involving biometric data have made consumers increasingly aware of the risks. Credentialing programs that fail to address privacy concerns proactively may find themselves facing not just legal challenges, but reputational damage that affects candidate enrollment and industry respect.
Practical Steps for Responsible Implementation
The good news is that it’s possible to implement AI-powered credentialing tools while respecting candidate privacy and maintaining legal compliance. The key is taking a proactive, comprehensive approach that goes beyond checking boxes on a compliance checklist.
Start with a thorough privacy impact assessment before implementing any AI or biometric monitoring tools. This isn’t just about identifying legal risks, it’s about understanding exactly what data you’re collecting, how it’s being processed, where it’s being stored, and who has access to it. Document not just the what, but the why, the legitimate business justification for collecting each type of data.
Consent is crucial, but it must be truly informed. This means providing clear, plain-language explanations of what biometric data you’re collecting and how you’re using it. Avoid burying these disclosures in lengthy terms of service agreements. Instead, provide specific consent forms that candidates must acknowledge before beginning the biometric enrollment process.
Consider offering alternatives where feasible. Not every candidate will be comfortable with biometric monitoring, and not every exam situation requires the same level of security. For lower-stakes assessments or in jurisdictions with strict biometric laws, consider offering traditional in-person testing or less invasive remote monitoring options.
Work closely with your technology vendors to ensure they understand their compliance obligations. Many credentialing programs assume that their proctoring vendor handles all privacy compliance, but Illinois law holds third parties handling data to the same compliance standards as the primary data collector. This means both you and your vendor could be liable for violations.
Implement robust data security measures that go beyond basic encryption. Biometric data should be stored separately from other candidate information, with access controls that limit who can view or process this data. Establish clear retention schedules and automated deletion processes to ensure data isn’t kept longer than necessary.
The Road Ahead: Preparing for an Uncertain Future
In a year of intensive policymaking around artificial intelligence, efforts to govern biometric data privacy have taken a back seat. However, this doesn’t mean the regulatory landscape is stable. If anything, the rapid adoption of AI in credentialing is likely to accelerate regulatory attention to biometric privacy issues.
2025 will see the continuing exploration of remote online proctoring, which will drive more investment by test delivery providers in AI-driven monitoring systems. As these systems become more sophisticated and more widely adopted, regulatory scrutiny is likely to increase.
Smart credentialing programs are already preparing for this reality by building privacy-by-design principles into their AI implementations. This means considering privacy implications at every stage of system design, from data collection to deletion, rather than trying to retrofit privacy protections onto existing systems.
The organizations that will thrive in this new landscape are those that view privacy compliance not as a burden, but as a competitive advantage. By demonstrating a commitment to responsible data handling, credentialing programs can differentiate themselves in a crowded market while building the trust that’s essential for long-term success.
Conclusion: Privacy as a Strategic Imperative
The integration of AI into credentialing exams isn’t going to slow down…if anything, it’s accelerating. The organizations that succeed will be those that recognize privacy compliance not as an afterthought, but as a strategic imperative that affects every aspect of their credentialing programs.
This means moving beyond minimum compliance to embrace transparency, respect for candidate autonomy, and proactive privacy protection. It means investing in systems and processes that protect biometric data while still delivering the security and accessibility benefits that AI can provide.
Most importantly, it means recognizing that in an age of increasing privacy awareness, the credentialing programs that earn and maintain candidate trust will be the ones that survive and thrive. The technology is powerful, but the trust of the professionals you serve is irreplaceable.
Need Help Navigating AI and Biometric Privacy Compliance?
The intersection of artificial intelligence, biometric data, and credentialing creates complex legal challenges that require specialized expertise. Whether you’re implementing new AI proctoring systems, updating your privacy policies, or facing compliance questions across multiple jurisdictions, Sapience Law can help you navigate this evolving landscape.
Our team understands the unique challenges facing credentialing organizations in the age of AI. We provide practical, business-focused guidance on biometric privacy compliance, vendor contract negotiations, and privacy-by-design implementation strategies that protect both your organization and your candidates.
Ready to ensure your credentialing program is privacy-compliant and future-ready?
Contact Sapience Law today to schedule a consultation and learn how we can help you implement AI-powered credentialing tools while maintaining the trust and legal compliance your program depends on.
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This article is for informational purposes only and does not constitute legal advice. For specific guidance on your credentialing program’s privacy compliance needs, consult with a Sapience Law attorney.