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Category Archives: Biometrics

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Washington Governor Signs Bill Addressing Government Use of Facial Recognition Technology

While Washington’s comprehensive data privacy bill (SB 6182) — inspired by California’s CCPA — died when legislators could not hammer out a compromise over enforcement mechanisms, the state legislature did reach agreement and Gov. Jay Inslee signed into law a facial recognition bill (SB 6280) that provides some important privacy and antidiscrimination provisions regarding state … Continue Reading

Will the Role of Facial Recognition Grow in a Post-COVID-19 World?

An interesting New York Times article last week posited that governments’ use of digital surveillance techniques for the COVID-19 response – such as the tracking of geolocation to gauge quarantine restrictions – would lead to more pervasive digital tracking in the future. On a related note, there have been reports of an increased use of … Continue Reading

Reflections on 2019 in Technology Law, and a Peek into 2020

It is that time of year when we look back to see what tech-law issues took up most of our time this year and look ahead to see what the emerging issues are for 2020. Data: The Issues of the Year Data presented a wide variety of challenging legal issues in 2019. Data is solidly … Continue Reading

Finding Article III Standing, Ninth Circuit Declines to Do an About-Face in Illinois Biometric Privacy Class Action against Facebook

In an important opinion, the Ninth Circuit affirmed a lower court’s ruling that plaintiffs in the ongoing Facebook biometric privacy class action have alleged a concrete injury-in-fact to confer Article III standing and that the class was properly certified. (Patel v. Facebook, Inc., No. 18-15982 (9th Cir. Aug. 8, 2019)). Given the California district court’s … Continue Reading

Recent Bill Introduced in Illinois Legislature Would Curtail BIPA Litigation

UPDATE:  Both bills failed to be reported out of committee by March 28, 2019 and were not debated during this year’s legislative session. In the wake of the Illinois Supreme Court decision that held that claimants need only allege a procedural violation to have standing to bring an action under the Illinois Biometric Information Privacy … Continue Reading

Bipartisan Facial Recognition Privacy Bill Introduced in Congress

Senators Brian Schatz (D) and Roy Blunt (R) recently introduced S.847, the “Commercial Facial Recognition Privacy Act of 2019,” a bill that would, subject to certain important exceptions,  generally prohibit the commercial use of facial recognition technology to identify and track consumers without consent. The bill, as drafted would place limitations on the third-party sharing … Continue Reading

New York City Considers Facial Recognition Bill — Will New York Be the Next Forum for Biometric Privacy Litigation?

UPDATE:  Subsequent to the introduction of the New York City Council biometric privacy bill, on March 5, 2019 members of the Florida legislature introduced the “Florida Biometric Information Privacy Act” (SB 1270).  The statute generally follows the Illinois Biometric Information Privacy Act (BIPA) regarding notice and consent requirements and notably provides for a private right … Continue Reading

In Federal Court, Article III Standing Remains a Defense to Illinois Biometric Privacy Claims

Last Friday, the Illinois Supreme Court ruled in the long-awaited Rosenbach case that an individual does not have to plead an actual injury or harm, apart from the statutory violation itself, in order to have statutory standing to sue under the Illinois Biometric Information Privacy Act (BIPA).  The Illinois Supreme Court ruling will allow procedural … Continue Reading

Illinois Supreme Court Rules Actual Injury Not Needed to Be an “Aggrieved” Party under Biometric Privacy Law

In a long-awaited decision, the Illinois Supreme Court issued its ruling in Rosenbach v. Six Flags Entertainment Corp., 2019 IL 123186 (Ill. Jan. 25, 2019), on whether a person “aggrieved” by a violation of the Illinois Biometric Information Privacy Act (“BIPA”) must allege some actual injury or harm beyond a procedural violation to have standing … Continue Reading

Illinois Supreme Court To Decide Scope of Illinois Biometric Privacy Law

On November 20, 2018, the Illinois Supreme Court heard oral argument on whether a company’s technical violation of the Illinois Biometric Information Privacy Act (“BIPA”) is sufficient to confer standing or whether a plaintiff must allege actual harm resulted from the violation. (Rosenbach v. Six Flags Entertainment Corp. et al., No. 123186) (prior decision). The Court’s … Continue Reading

Biometric Suits Continue, Including Recent Action Against IoT Company

Last December, we noted the continuing robust wave of Illinois biometric privacy suits.  At that time, dozens of suits had been filed in Illinois state court against Illinois-based employers and other businesses alleging violation of Illinois’s Biometric Information Privacy Act (BIPA), which generally regulates the collection, retention, and disclosure of personal biometric identifiers and biometric … Continue Reading

Illinois Appellate Court Reinstates Biometric Privacy Action, Finding Potential Harm in Alleged Disclosure of Fingerprint to Outside Vendor

Late last month, an Illinois appellate court reversed a lower court’s dismissal of biometric privacy claims against a tanning salon franchisee that had collected the plaintiff’s fingerprint to allow entry in its own salon and any L.A. Tan salon location nationwide.  (Sekura v. Krishna Schaumburg Tan, Inc., 2018 IL App (1st) 180175 (Ill. App. Sept. … Continue Reading

Illinois Biometric Privacy Suit over Employee Fingerprinting Remanded for Lack of Standing

An Illinois district court remanded to state court for lack of standing a biometric privacy suit brought by employees over the collection and storage of individuals’ fingerprints allegedly in violation of the Illinois Biometric Information Privacy Act, 740 ILCS 14/1 (“BIPA”). (Aguilar v. Rexnord, LLC, No. 17 CV 9019 (N.D. Ill. July 3, 2018)).  This … Continue Reading

Illinois Biometric Privacy Suit Survives Dismissal Based on Harm from Alleged Disclosure of Data to Outside Vendor

Last December, an Illinois appellate court, in the Rosenbach v. Six Flags decision (2017 IL App (2d) 170317 (Dec. 21, 2017)), dismissed biometric privacy claims lodged against theme park operators for collecting fingerprints to authenticate season-pass holders allegedly in violation of the notice and consent provisions of Illinois’s Biometric Information Privacy Act (BIPA), which regulates … Continue Reading

A Busy Month in the Facebook Photo Tagging Biometric Privacy Dispute

As discussed in past posts about the long-running Facebook biometric privacy class action, users are challenging Facebook’s “Tag Suggestions” program, which scans for and identifies people in uploaded photographs for photo tagging. The class alleges that Facebook collected and stored their biometric data without prior notice or consent in violation of the Illinois Biometric Information … Continue Reading

Illinois Considering Amendments to Biometric Privacy Law (BIPA) That Would Create Major Exemptions to Its Scope

We have written before about the issues presented by the Illinois Biometric Information Privacy Act, 740 Ill. Comp Stat. 14/1 (“BIPA”).  BIPA is still the only state biometric privacy statute with a private right of action. It has garnered national attention and become the epicenter of biometrics-based litigation, with dozens of cases pending alleging violations … Continue Reading

Facebook Granted Dismissal of Biometric Privacy Claims Brought by “Non-Users”

UPDATE: On June 14, 2019, the Ninth Circuit, in an unpublished two-page decision, affirmed the lower court’s dismissal of the case. This week, the District Court for the Northern District of California dismissed the Gullen putative class action asserting Illinois biometric privacy claims brought by “non-users” based on evidence that the social media site did not … Continue Reading

California Court Declines to Dismiss Illinois Facial Recognition/Biometric Privacy Suit against Facebook on Standing Grounds

UPDATE: On March 2, 2018, in a related biometric privacy litigation surrounding Tag Suggestions brought by non-users of Facebook, a California district court in a brief order declined to dismiss the action for lack of standing, citing its reasoning in the Patel opinion.  (Gullen v. Facebook, Inc., No. 16-00937 (N.D. Cal. Mar. 2, 2018)). While … Continue Reading

Google App Disables Art-Selfie Biometric Comparison Tool in Illinois and Texas

We have been closely following the legal and legislative developments relating to biometric privacy, and in particular, the flow of litigation under the Illinois biometrics privacy law.   It was interesting to see how the Illinois law (as well as a similar Texas law) influenced Google’s  offering of a new facial recognition feature on the Google … Continue Reading

Litigants Alleging Procedural Violations of Illinois Biometric Privacy Statute (BIPA) Are Not “Aggrieved” Parties That May Seek Legal Remedies

As 2017 drew to an end, we noted the continuing flood of Illinois biometric privacy suits filed over the past year.  There are literally dozens of cases pending, most in Illinois state courts, alleging violation of Illinois’s Biometric Information Privacy Act (BIPA), which regulates the collection, retention, and disclosure of personal biometric identifiers and biometric … Continue Reading

Wave of Illinois Biometric Privacy Suits Continues Unabated

After noting the flood of Illinois biometric privacy suits in September, it appears that the flow of such suits remains robust.  Dozens of suits have been filed in Illinois state court against Illinois-based employers and other businesses alleging violation of Illinois’s Biometric Information Privacy Act (BIPA), which generally regulates the collection, retention, and disclosure of … Continue Reading

Appeals Court Affirms Dismissal on Standing Grounds of Biometric Privacy Suit over Videogame Facial Scan Feature

With the flood of Illinois biometric privacy suits lodged against employers in recent months, and multiple biometric privacy suits against social media and other mobile platforms currently pending over the use of photo tagging functions, 2017 has been a busy year in this area.  In a notable circuit court level ruling this week, the Second … Continue Reading

Wow! Illinois Biometric Privacy Suits Proliferate

This month, in one of the many recently-filed Illinois biometric privacy suits, a class action complaint alleging violations of Illinois’s Biometric Information Privacy Act (BIPA) was lodged against Wow Bao, a restaurant chain, over its use of self-order kiosks that allow customers to use faceprints as a method to authenticate purchases. (Morris v. Wow Bao LLC, No. … Continue Reading

Apple X’s Face ID Feature Places Spotlight on Facial Recognition Technology, Raising Numerous Mobile Privacy and Data Usage Issues

This week’s Apple X announcement was not more than a few hours old, and the questions began to come in. Apple’s introduction of Face ID facial recognition on its new phone – although already available in some form on several Android phones – generated curiosity, concerns and creativity.  Unfortunately, the details about specifically how the … Continue Reading
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