Can you scan IDs in Virginia?
Virginia law regulates a business’s practice of scanning IDs and retaining information obtained from a scan.
There are some instances in which merchants are required to record information related to identity, such as scrap metal recycling. ID scanning can improve the ease and accuracy of record keeping in these scenarios.
Overview of Virginia ID Scanning Laws
A Virginia statute prohibits a “merchant” from scanning IDs except under one of the following circumstances:
- To verify the authenticity of the ID or to verify the identity of the individual if the individual (a) pays for goods or services with a method other than cash, (b) returns an item, or (c) requests a refund or exchange.
- To verify the individual’s age in providing age-restricted goods or services.
- To prevent fraud or other criminal activity if the individual returns an item or requests an exchange and the merchant uses a fraud prevention service company or system. Information collected under this exception must be limited to name, address, date of birth, and ID number.
- To comply with laws.
- To provide information to a check services company for purposes of administering or enforcing a transaction or preventing fraud or other criminal activity.
- To complete a transaction authorized under the Gramm-Leach-Bliley Act (applicable to financial services) or the Fair Credit Reporting Act.
No “merchant” is allowed to retain information obtained from a scan except as permitted under (3), (4), (5), or (6) above. No “merchant” is allowed to sell or disseminate information obtained from a scan to a third party for any marketing, advertising, or promotional purpose, but a “merchant” may disseminate such information under (3), (4), (5), or (6) above. Interestingly, the prohibition appears to apply only to a “merchant,” which is defined as “any person or entity engaged in the sale of goods from a fixed retail location in Virginia.” This definition arguably limits the scope of the prohibition and may exempt businesses that are not “merchants” by definition. Whether this limitation is intentional is to be determined.
The prohibition set forth above cannot be waived.
ID Scanning for Loyalty Enrollment in Virginia
A merchant is not likely allowed to scan IDs for purposes of loyalty enrollment.
ID Scanning for Credit Applications in Virginia
A merchant is likely allowed to scan IDs for purposes of processing a credit application.
ID Scanning for Check Acceptance Virginia
A merchant is allowed to scan IDs when customers pay with a method other than cash.
ID Scanning for Refunds in Virginia
A merchant is allowed to scan IDs when customers request a refund.
ID Scanning for Customer Pickup in Virginia
A merchant is not likely allowed to scan IDs of customers picking up purchased merchandise.
ID Scanning for Access Control in Virginia
A merchant is not likely allowed to scan IDs of truck drivers delivering goods to distribution centers unless such IDs are internal (non-governmental) IDs.
ID Scanning for Hotel Check-in in Virginia
A hotel can scan a guest’s ID (a) to verify the authenticity of the ID or the guest’s identity if the guest pays with a method other than cash or (b) to verify the guest’s age if providing accommodations is deemed an age-restricted service in Virginia. However, ID information so scanned cannot be retained. Additionally, a hotel can scan a guest’s ID to transmit information obtained from a scan to a check services company for purposes of payment approval. ID information so scanned can be retained.
A person aggrieved by a violation of the prohibition set forth above can recover damages in the amount of $100 per violation and is entitled to reasonable attorney’s fees and court costs.
Does Virginia offer affirmative defense for ID scanning?
No.
Virginia § 59.1-443.3. Scanning information from driver’s license or other document; retention, sale, or dissemination of information.
A. No merchant may scan the machine-readable zone of a driver’s license or other document issued by the Department of Motor Vehicles under Chapter 3 (§ 46.2-300 et seq.) of Title 46.2 or the comparable law of another jurisdiction, except for the following purposes:
1. To verify authenticity of the driver’s license or other document or to verify the identity of the individual if the individual requests a service pursuant to a membership or a service agreement, pays for goods or services with a method other than cash, returns an item, or requests a refund or an exchange;
2. To verify the individual’s age when providing age-restricted goods or services to the individual if there is a reasonable doubt of the individual having reached 18 years of age or older;
3. To prevent fraud or other criminal activity if the individual returns an item or requests a refund or an exchange and the merchant uses a fraud prevention service company or system. Information collected by scanning an individual’s driver’s license or other document pursuant to this subdivision shall be limited to the individual’s name, address, and date of birth and the number of the driver’s license or other document;
4. To comply with a requirement imposed on the merchant by the laws of the Commonwealth or federal law;
5. To provide to a check services company regulated by the federal Fair Credit Reporting Act, (15 U.S.C. § 1681 et seq.), that receives information obtained from an individual’s driver’s license or other document to administer or enforce a transaction or to prevent fraud or other criminal activity; or
6. To complete a transaction permitted under the federal Gramm-Leach-Bliley Act, (15 U.S.C. § 6801 et seq.), or the federal Fair Credit Reporting Act, (15 U.S.C. § 1681 et seq.).
B. No merchant shall retain any information obtained from a scan of the machine-readable zone of an individual’s driver’s license or other document except as permitted in subdivision A 1, 3, 4, 5, or 6. The merchant shall destroy the retained information when the purpose for which it was provided and retained under this section has been satisfied.
C. No merchant shall sell or disseminate to a third party any information obtained from a scan of the machine-readable zone of an individual’s driver’s license or other document for any marketing, advertising, or promotional purpose. This subsection shall not prohibit a merchant from disseminating to a third party any such information for a purpose described in subdivision A 3, 4, 5, or 6.
D. Any waiver of a provision of this section is contrary to public policy and is void and unenforceable.
Virginia SB 1350. Age verification for tobacco & vape sales
No person inside or outside the Commonwealth shall make a remote retail sale of cigars or pipe tobacco to consumers in the Commonwealth without (iv) providing for age verification through an independent, third-party age verification service that compares information available from a commercially available database, or aggregate of databases, that is 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 of age;
Virginia S 582. Amends the Code of Virginia relating to tobacco purchases
See also, Virginia H 790
Adopted by the Governor, 04/17/2024. Effective July 1, 2024
Before a retail dealer may sell retail tobacco products, other than cigar and pipe tobacco products as defined in § 58.1-1021.01, to any consumer, the person selling, offering for sale, giving, or furnishing the retail tobacco products shall verify that the consumer is of legal age by examining from any person who appears to be under 30 years of age a government-issued photographic identification that establishes that the person is of legal age or, if required pursuant to subdivision C 4 b of § 58.1-1021.04:1 or subdivision B 2 b of § 59.1-293.12, verifying the identification presented using identification fraud detection software, technology, or a scanner that confirms the authenticity of such identification.
Virginia House Bill 1509. Relating to restrictions on the sale of nicotine vapor products
Left in Appropriations, 02/13/2024
Would prohibit the sale of a tobacco product nicotine vapor product, alternative nicotine product, or hemp product intended for smoking to any individual unless they demonstrate, by producing a driver’s license or similar photo identification issued by a government agency, that the individual is at least 21 years of age.
Any person that sells nicotine vapor products containing liquid nicotine or hemp products intended for smoking to a consumer may not ship for a delivery sale any nicotine vapor products containing liquid nicotine or hemp products intended for smoking without first making a good faith effort to verify the age of the purchaser of the nicotine vapor products containing liquid nicotine or hemp products intended for smoking through an independent, third-party age verification software, service, or technology that compares information available from public records to the personal information entered by the purchaser during the ordering process that establishes the purchaser is of legal age or older
Virginia HB 1090. Relating to increased penalties for the sale of tobacco products to minors
See also: Virginia HB 1240
Left in Courts of Justice, 02/13/2024
Would prohibit the purchase or possession of tobacco products, etc.; persons under 21 years of age; civil penalties. Increases the civil penalty from $100 to $500 for a first violation, $200 to $1,000 for a second violation, and $500 to $2,500 for a third or subsequent violation by an individual or by a separate retail establishment.
Virginia HB 1481 Scrap metal purchasers; purchase of secondhand articles, reports, penalty.
Every junk dealer selling or acquiring secondhand building materials of the kind mentioned in § 59.1-117, including persons regularly engaged in the business of collecting or acquiring secondhand building materials for the purpose of resale to a scrap metal processor purchaser, shall deliver:
1. If the purchase, acquisition, or receipt of the secondhand building fixture occurred in a city or town, to the chief of police of the city or town in which such goods were bought, collected, or received, every day except Sunday before noon, on blank forms to be prescribed and furnished by the chief of police of such city or town:
a. A legible and accurate description of every secondhand building fixture purchased, acquired, or received by him during the next preceding business day;
b. The date and time of the secondhand building fixture’s acquisition;
c. If the person is a dealer, the number of his permit issued pursuant to § 59.1-118;
d. The license number of any automobile or other vehicle in which the secondhand building fixture was collected or received;
e. If available, the name and date of birth of the person with whom the dealer conducted the transaction; and
Virginia. § 4.1-304. Persons to whom alcoholic beverages may not be sold; proof of legal age; penalty.
A. No person shall, except pursuant to subdivisions 1 through 5 of § 4.1-200, sell any alcoholic beverages to any individual when at the time of such sale he knows or has reason to believe that the individual to whom the sale is made is (i) less than 21 years of age, (ii) interdicted, or (iii) intoxicated. Any person convicted of a violation of this subsection is guilty of a Class 1 misdemeanor.
B. Any person who sells, except pursuant to subdivisions 1 through 5 of § 4.1-200, any alcoholic beverage to an individual who is less than 21 years of age and at the time of the sale does not require the individual to present bona fide evidence of legal age indicating that the individual is 21 years of age or older is guilty of a violation of this subsection. Bona fide evidence of legal age is limited to any evidence that is or reasonably appears to be an unexpired driver’s license issued by any state of the United States or the District of Columbia, military identification card, United States passport or foreign government visa, unexpired special identification card issued by the Department of Motor Vehicles, or any other valid government-issued identification card bearing the individual’s photograph, signature, height, weight, and date of birth, or which bears a photograph that reasonably appears to match the appearance of the purchaser. A student identification card shall not constitute bona fide evidence of legal age for purposes of this subsection. Any person convicted of a violation of this subsection is guilty of a Class 3 misdemeanor. Notwithstanding the provisions of § 4.1-202, the Board shall not take administrative action against a licensee for the conduct of his employee who violates this subsection.
C. No person shall be convicted of both subsections A and B for the same sale.