Late last week, the Illinois state senate considered an amendment tacked onto to an unrelated bill that would have revised the Illinois’ Biometric Information Privacy Act, a law that has been the subject of much debate and litigation in the past year.  This amendment had the potential to drastically affect the current litany of lawsuits lodged against technology companies over their photo-tagging services.  In the wake of heavy lobbying against the amendment by opponents to the change, and as the legislative session neared a close, the senator who proposed the amendment announced that it would, for now, be put on hold.

The use of facial recognition technology by certain web and mobile services with social aspects has become an emerging concern in the past year.  Multiple social media companies have been ensnared in litigation over their use of facial recognition technology to provide certain photo-tagging and other related services, with plaintiffs seeking statutory damages under Illinois’ Biometric Information Privacy Act (BIPA).

Plaintiffs alleging violations of BIPA generally assert that certain web and mobile services have amassed users’ faceprints without the requisite notice and consent by using advanced facial recognition technology to extract biometric identifiers from uploaded user photographs.  Defendants, in turn, have argued that BIPA expressly excludes from its coverage “photographs” and “any information derived from photographs” and that the statute’s use of the term “scan of hand or face geometry” was only meant to cover in-person scans of a person’s actual hand or face (not the scan of an uploaded photograph).  Thus far, such defense arguments have been rejected at the early motion to dismiss phase of several ongoing disputes.

The amendment to BIPA (attached to a pending bill regarding unclaimed property) would shorten the reach of the law, echoing the interpretations of BIPA advanced by the various defendants in ongoing litigation.  The BIPA amendment expressly excludes both physical and digital photographs from the definition of “biometric identifier” and most notably, limits the definition of “scan of hand or face geometry” to in-person scans (“data resulting from an in-person process whereby a part of the body is traversed by a detector or an electronic beam”).  Such an amendment would effectively abrogate BIPA claims related to the collection of user faceprints by online services.

It is unclear whether this revision to the Illinois biometric privacy law will be taken up and debated when the Illinois legislature reconvenes.

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Photo of Jeffrey Neuburger Jeffrey Neuburger

Jeffrey Neuburger is co-head of Proskauer’s Technology, Media & Telecommunications Group, head of the Firm’s Blockchain Group and a member of the Firm’s Privacy & Cybersecurity Group.

Jeff’s practice focuses on technology, media and intellectual property-related transactions, counseling and dispute resolution. That expertise…

Jeffrey Neuburger is co-head of Proskauer’s Technology, Media & Telecommunications Group, head of the Firm’s Blockchain Group and a member of the Firm’s Privacy & Cybersecurity Group.

Jeff’s practice focuses on technology, media and intellectual property-related transactions, counseling and dispute resolution. That expertise, combined with his professional experience at General Electric and academic experience in computer science, makes him a leader in the field.

As one of the architects of the technology law discipline, Jeff continues to lead on a range of business-critical transactions involving the use of emerging technology and distribution methods. For example, Jeff has become one of the foremost private practice lawyers in the country for the implementation of blockchain-based technology solutions, helping clients in a wide variety of industries capture the business opportunities presented by the rapid evolution of blockchain. He is a member of the New York State Bar Association’s Task Force on Emerging Digital Finance and Currency.

Jeff counsels on a variety of e-commerce, social media and advertising matters; represents many organizations in large infrastructure-related projects, such as outsourcing, technology acquisitions, cloud computing initiatives and related services agreements; advises on the implementation of biometric technology; and represents clients on a wide range of data aggregation, privacy and data security matters. In addition, Jeff assists clients on a wide range of issues related to intellectual property and publishing matters in the context of both technology-based applications and traditional media.