Can you scan an ID in Michigan?

Michigan law does not regulate a business’s ability to scan IDs and to retain information obtained from a scan; however, there are relevant statutes. 

There are some instances in which merchants are required to record information related to identity, such as online tobacco sales, scrap metal recycling, and sale of ephedrine and pseudoephedrine. Digital identity validation and ID scanning can improve the ease and accuracy of record keeping in these scenarios.

Overview of Michigan ID Scanning Laws

A Michigan statute prohibits one that is not a party to a transaction from electronically capturing, recording, distributing, disseminating, or transmitting personal information from the transaction without the consent of the individual.  As a disclaimer to this general prohibition, the statute provides that it “does not prohibit the capture or transmission of personal identifying information in the ordinary and lawful course of business.”  In the absence of any other statute governing issues associated with scanning IDs and retaining information obtained from a scan, this disclaimer suggests that a business’s ability to electronically capture personal information in the ordinary and lawful course of business, subject to applicable privacy laws, is not restricted. 

One indirectly relevant statute, § 28.298, governs the Michigan Secretary of State’s disclosure of personal information contained in IDs.  This statute provides that the Secretary of State may disclose such personal information to a business for use in the normal course of business to verify the accuracy of personal information submitted by an individual for the sole purpose of preventing fraud or recovering on a debt against the individual.  In other words, this statute allows a business to acquire personal information (from the Secretary of State) as long as the business is comparing it to the personal information provided by the individual and is doing so for the purpose of preventing fraud or recovering on a debt.  This existing legal framework provides some guidance on the circumstances under which the State of Michigan might allow a business to scan IDs in the event its Attorney General decided to regulate the practice of ID scanning by businesses.  And an analogy to § 28.299 suggests that it would be ideal for a business that shares personal information acquired from a scan with a fraud prevention vendor to keep a record of each disclosure for 5 years. 

Does Michigan offer affirmative defense for ID scanning?

No.

Michigan Act 31 of 1915. Youth Tobacco Act (Excerpt)

A person shall not sell, give, or furnish a tobacco product, vapor product, or alternative nicotine product to a minor, including, but not limited to, through a vending machine. A person who violates this subsection or subsection (8) is guilty of a misdemeanor punishable by a fine as follows:

(a) For a first offense, not more than $100.00.

(b) For a second offense, not more than $500.00.

(c) For a third or subsequent offense, not more than $2,500.00.

Before selling, offering for sale, giving, or furnishing a tobacco product, vapor product, or alternative nicotine product to an individual, a person shall verify that the individual is at least 21 years of age by doing 1 of the following:

(a) If the individual appears to be less than 27 years of age, examining a government-issued photographic identification that establishes that the individual is at least 21 years of age.

(b) For sales made by the internet or other remote sales method, performing an age verification through an independent, third-party age verification service that compares information available from a commercially available database, or aggregate of databases, that are regularly used by government agencies and businesses for the purpose of age and identity verification to the personal information entered by the individual during the ordering process that establishes that the individual is 21 years of age or older.

State personal identification card. Act 222. 28.298 Disclosure of personal information; uses

(1) Except as provided in this section and in section 10, personal information in a record maintained under this act shall not be disclosed, unless the person requesting the information furnishes proof of identity satisfactory to the secretary of state and certifies that the personal information requested will be used for a permissible purpose identified in this section or in section 10. Highly restricted personal information shall be used and disclosed only as expressly permitted in section 2 or in another applicable provision of law.

(2) Personal information in a record maintained under this act shall be disclosed by the secretary of state if required to carry out the purposes of a specified federal law. As used in this section, “specified federal law” means the automobile information disclosure act, 15 USC 1231 to 1233, the former motor vehicle information and cost savings act, Public Law 92-513, the former national traffic and motor vehicle safety act of 1966, Public Law 89-563, the anti-car theft act of 1992, Public Law 102-519, the clean air act, chapter 360, 69 Stat. 322, and all federal regulations promulgated to implement these federal laws.

(3) Personal information in a record maintained under this act may be disclosed by the secretary of state as follows:

(a) For use by a federal, state, or local governmental agency, including a court or law enforcement agency, in carrying out the agency’s functions, or by a private person or entity acting on behalf of a governmental agency in carrying out the agency’s functions.

(b) For use in connection with matters of motor vehicle and driver safety or auto theft; motor vehicle emissions; motor vehicle product alterations, recalls, or advisories; performance monitoring of motor vehicles; motor vehicle market research activities, including survey research; and the removal of nonowner records from the original records of motor vehicle manufacturers.

(c) For use in the normal course of business by a legitimate business, including the agents, employees, and contractors of the business, but only to verify the accuracy of personal information submitted by an individual to the business or its agents, employees, or contractors, and if the information as so submitted is no longer correct, to obtain the correct information, for the sole purpose of preventing fraud by pursuing legal remedies against, or recovering on a debt against, the individual.

(d) For use in connection with a civil, criminal, administrative, or arbitral proceeding in a federal, state, or local court or governmental agency or before a self-regulatory body, including use for service of process, investigation in anticipation of litigation, and the execution or enforcement of judgments and orders, or pursuant to an order of a federal, state, or local court, an administrative agency, or a self-regulatory body.

(e) For use in legitimate research activities and in preparing statistical reports for commercial, scholarly, or academic purposes by a bona fide research organization, if the personal information is not published, redisclosed, or used to contact individuals.

(f) For use by an insurer or insurance support organization, or by a self-insured entity, or its agents, employees, or contractors, in connection with claims investigating activity, antifraud activity, rating, or underwriting.

(g) For use in providing notice to the owner of an abandoned, towed, or impounded vehicle.

(h) For use either by a private detective or private investigator licensed under the private detective license act, 1965 PA 285, MCL 338.821 to 338.851, or by a private security guard agency or alarm system contractor licensed under the private security business and security alarm act, 1968 PA 330, MCL 338.1051 to 338.1083, only for a purpose permitted under this section.

(i) For use by an employer, or the employer’s agent or insurer, to obtain or verify information relating either to the holder of a commercial driver license that is required under the commercial motor vehicle safety act of 1986, Public Law 99-570, or to the holder of a chauffeur’s license that is required under chapter 3 of the Michigan vehicle code, 1949 PA 300, MCL 257.301 to 257.329.

(j) For use by a car rental business, or its employees, agents, contractors, or service firms, for the purpose of making rental decisions.

(k) For use by a news medium in the preparation and dissemination of a report related in part or in whole to the operation of a motor vehicle or public safety. “News medium” includes a newspaper, a magazine or periodical published at regular intervals, a news service, a broadcast network, a television station, a radio station, a cablecaster, or an entity employed by any of the foregoing.

(l) For any use by an individual requesting information pertaining to himself or herself or requesting in writing that the secretary of state provide information pertaining to himself or herself to the individual’s designee. A request for disclosure to a designee, however, may be submitted only by the individual.

(4) Copies or images of source documents retained by the secretary of state under section 1 of this act and section 5 of the enhanced driver license and enhanced official state personal identification card act, MCL 28.305, may be used and disclosed for the purposes of subsection (3)(a) and (l).

Michigan Liquor Control Code. For Alcohol Delivery

(c) Comply with all prohibitions of the laws of this state, including, but not limited to, sales to minors.
(d) Verify the age of the individual placing the order by obtaining from him or her a copy of a photo identification issued by this state, another state, or the federal government or by utilizing an identification verification service. The person receiving and accepting the order on behalf of the direct shipper shall record the name, address, date of birth, and telephone number of the person placing the order on the order form or other verifiable record of a type and generated in a manner approved by the commission and provide a duplicate to the commission.
(e) Upon request of the commission, make available to the commission any document used to verify the age of the individual ordering or receiving the wine from the direct shipper.
(f) Stamp, print, or label on the outside of the shipping container that the package “Contains Alcohol. Must be delivered to a person 21 years of age or older.” The recipient at the time of the delivery is required to provide photo identification verifying his or her age along with a signature.
(g) Place a label on the top panel of the shipping container containing the direct shipper license number, the order number, the name and address of the individual placing the order, and the name of the designated recipient if different from the name of the individual placing the order.

5) The person who delivers the wine shall verify that the individual accepting delivery is of legal age and is the individual who placed the order or the designated recipient, is an individual of legal age currently occupying or present at the address, or is an individual otherwise authorized through a rule promulgated under this act by the commission to receive alcoholic liquor under this section. If the delivery person, after a diligent inquiry, determines that the purchaser or designated recipient is not of legal age, the delivery person shall return the wine to the direct shipper. A delivery person who returns wine to the direct shipper due to inability to obtain the purchaser’s or designated recipient’s legal age is not liable for any damages suffered by the purchaser or direct shipper.

Senate Bill 0668. Tobacco; retail sales; electronic cigarette; prohibit of sale to minors

(8) Before selling, offering for sale, giving, or furnishing a vapor product or alternative nicotine product to an individual, a person shall verify that the individual is at least 18 years of age by doing 1 of the following:
(a) If the individual appears to be under 27 years of age, examining a government-issued photographic identification that establishes that the individual is at least 18 years of age.
(b) For sales made by the internet or other remote sales method, performing an age verification through an independent, third-party age verification service that compares information available from a commercially available database, or aggregate of databases, that are regularly used by government agencies and businesses for the purpose of age and identity verification to the personal information entered by the individual during the ordering process that establishes that the individual is 18 years of age or older.

Michigan Scrap Metal Regulatory Act. 445.427.

(b) The name, address, and identifying number from the identification presented under section 5(2)(a). A legible scan or photocopy of the identification meets the requirement of this subdivision. If an individual is a seller or representative of a seller in more than 1 purchase transaction, the scrap metal dealer may retain a copy of the information or document described in this subdivision in a separate file and use that information in future purchase transactions.

(c) If the scrap metal is delivered by licensed vehicle, the license plate number of the vehicle.

Michigan Public Health Code. 333,1766e. Sale of ephedrine or pseudoephedrine; requirements of retail distributor

2) A person who sells a product described in subsection (1) shall do each of the following:

(a) Require the purchaser of a product described under subsection (1) to produce a valid government-issued photo identification that includes the individual’s name and date of birth.

(b) Maintain a log or some type of record detailing the sale of a product described under subsection (1), including the date of the sale and the time of purchase, the name, address, and date of birth of the buyer, the amount and description of the product sold, and a description of the identification used to make the purchase, such as the state in which a driver license used for identification was issued and number of that license. The seller shall also require the purchaser to sign the log at the time of sale. Information entered into the national precursor log exchange (NPLEX) satisfies the requirement to maintain a log or some type of record detailing the sale under this subdivision. The log or other means of recording the sale as required under this subdivision shall be maintained for a minimum of 6 months and made available to only a law enforcement agency upon request. The log or other means of recording the sale is not a public record and is not subject to the freedom of information act, 1976 PA 442, MCL 15.231 to 15.246. A person shall not sell or provide a copy of the log or other means of recording the sale to another for the purpose of surveys, marketing, or solicitations.