For the second time in the past six months, a district court has dismissed a lawsuit alleging procedural and technical violations of the Illinois biometric privacy statute for lack of Article III standing. In Vigil v. Take-Two Interactive Software, Inc., No. 15-8211 (S.D.N.Y. Jan. 27, 2017), the court dismissed Illinois biometric privacy claims against a videogame maker related to a feature in the NBA 2K videogame series that allows users to scan their faces and create a personalized virtual avatar for in-game play. In a lengthy opinion, the New York court provided Take-Two with a resounding victory when it ruled that procedural violations of the notice and consent provisions of the Illinois biometric privacy statute are not in-of-themselves sufficient to confer standing.
Biometric technology such as facial recognition, iris scans, or fingerprint authentication is being used and further developed to improve the security of financial and other sensitive transactions. At the same time, social media sites, mobile apps, videogame developers and others are employing biometrics for other cutting edge uses to improve services. The current Vigil ruling is particularly important, however, as it may buoy companies that collect biometric data under reasonable notice and usage policies, as they hope that the approval applied in Vigil is affirmed, if appealed, and followed in other jurisdictions.