Governing Biometric Advertising: State Variation and the Rise of Physiological Data–Driven Persuasion

• In Event: AI Policy, Law, and Regulatory Diffusion

Abstract

Biometric technologies – eye tracking, galvanic skin response, heart rate, and EEG – are no longer confined to the lab. They are rapidly becoming embedded in everyday consumer devices, from smartphones to TVs to extended reality headsets. Physiological signals from these devices can give a direct window into people’s attention, emotion, comprehension, and memory. As these capabilities are integrated into everyday consumer platforms, companies will use them to build far more effective advertising systems that dynamically adjust content, timing, and delivery based on a consumer’s moment-to-moment psychological and emotional state. At the same time, this coming transformation in advertising raises critical questions about how highly sensitive biometric data are collected, used, and protected. Despite these emerging capabilities, there is no comprehensive federal framework that directly governs the use of biometric data in advertising. As a result, states can become the primary arena for regulating these practices. This raises a central question: How have U.S. states responded to the use of biometric data in advertising? To answer this question, we conduct a systematic content analysis of state biometric laws across the United States. We compiled a dataset of state-level biometric privacy laws from 2022 to 2024, including proposed, enacted, and vetoed legislation. We then examined how these laws regulate the use of biometric data in advertising and marketing contexts. We found that while roughly half of U.S. states have introduced or enacted legislation addressing biometric data, only a small subset explicitly addresses its use in advertising and marketing. States also vary in how they define biometric data, including whether neural data, facial recognition, or genetic information is treated as biometric. These differences mean that a fragmented state-level policy landscape will influence the future of biometric advertising. For consumers, this creates uneven protection over highly sensitive physiological data. For firms, it creates regulatory uncertainty about what types of biometric-driven advertising can be deployed, scaled, and sustained across jurisdictions.

Author

• Iris Mae Blackburn, The Ohio State University
  Presenting Author