biometric privacy

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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. 2017-CH-12029 (Ill. Cir. Ct. filed Sept. 5, 2017)).  The suit against Wow Bao was not the only BIPA-related suit filed in September, as several businesses with an Illinois presence, including Crunch Fitness and Speedway, Inc., were served with complaints. And more than a week ago, an Illinois federal court refused to dismiss BIPA claims against photo storage service Shutterfly over claims that its photo tagging feature created a faceprint of the non-user plaintiff after a friend uploaded a group photo, and upon the service’s suggestion, then tagged the plaintiff, thereby storing plaintiff’s faceprint and name in Shutterfly’s database without his notice or consent. (Monroy v. Shutterfly, Inc., No. 16-10984 (N.D. Ill. Sept. 15, 2017)).

We have been writing about the biometric privacy legal landscape, which has thus far been dominated by the Illinois Biometric Information Privacy Act (BIPA).  While there are a number of states that are considering bills modeled after BIPA, Washington has enacted a bill that takes a dramatically different approach.   On May 16, 2017, HB 1493 (the “Washington Statute,” or the “Statute”) was signed into law by Governor Jay Inslee and will become effective on July 23, 2017.

The stated purpose of the Statute is to require a business that collects and can attribute biometric data to a specific individual to disclose how it uses that biometric data and provide notice to and obtain consent from an individual before enrolling or changing the use of that individual’s biometric identifiers in a database. Unlike BIPA, the Statute does not provide a private cause of action; it may be enforced solely by the state attorney general under the Washington consumer protection act.  It should be noted, however, that Washington has traditionally been one of the leading states with regard to the enforcement of consumer privacy.

Even though Washington passed its own biometric privacy law last month (HB 1493), and other states are currently debating their own bills, Illinois’s Biometric Information Privacy Act (BIPA) is still the crux of biometric and facial recognition privacy-related litigation.  Such suits have typically involved social media services, video game makers or businesses that collect biometric data to authenticate customers.  In a slight twist, on May 11, 2017, a putative class of employees filed suit against Roundy’s Supermarkets alleging violations of BIPA surrounding the collection and retention of employees’ fingerprints – as opposed to using last century’s analog time cards, Roundy’s requires employees to scan their fingers each time they clock “in” and “out” of their work shifts to verify their identities.  In the suit, plaintiffs claim that Roundy’s failed to offer notice and obtain written consent prior to capturing employees’ fingerprints, or post a retention policy about how long the company stores the biometric data. (See Baron v. Roundy’s Supermarkets, Inc., No. 17-03588 (N.D. Ill. filed May 11, 2017)).

Update: On March 9, 2017, Google filed a motion requesting the court certify an interlocutory appeal.  In particular, Google contends that the following question satisfies the statutory criteria: whether the term “biometric identifier,” as defined in Illinois Biometric Privacy Act, includes information derived from photographs.

We’ve closely followed the numerous biometric privacy disputes and legislative developments surrounding the Illinois Biometric Information Privacy Act (BIPA), which precludes the unauthorized collection and storing of some types of biometric data.  In the latest ruling, an Illinois district court refused to dismiss a putative class action alleging that the cloud-based Google Photos service violated BIPA by automatically uploading plaintiffs’ mobile photos and allegedly scanning them to create unique face templates (or “faceprints”) for subsequent photo-tagging without consent.  (Rivera v. Google, Inc., No. 16-02714 (N.D. Ill. Feb. 27, 2017)).

This is the third instance where a district court refused, at an early stage of a litigation, to dismiss BIPA claims relating to the online collection of facial templates for photo-tagging purposes.  Unlike those prior courts’ relatively cursory interpretations, however, the Rivera court’s expansive 30-page opinion is the deepest dive yet into the statutory scheme (and purported vagaries) of the Illinois statute.  The decision is the latest must-read for mobile or online services that collect and store biometric data from users as to what extent their activities might fall under the Illinois biometric privacy statute.  It may well turn out that the plaintiffs’ claims in Rivera (as well as the ongoing biometric privacy litigation going on in California) may prove unsuccessful on procedural or statutory grounds, yet, these initial takes on the scope of BIPA stress the importance of examining current practices and rollouts of new services that feature biometrics. 

We’ve written extensively about the numerous lawsuits, dismissals and settlements surrounding the Illinois Biometric Information Privacy Act (BIPA). The statute, generally speaking, prohibits an entity from collecting, capturing, purchasing, or otherwise obtaining a person’s “biometric identifier” or “biometric information,” unless it satisfies certain notice and consent and data retention requirements. The statute contains defined terms and limitations, and parties in ongoing suits are currently litigating what “biometric identifiers” and “biometric information” mean under the statute and whether the collection of facial templates from uploaded photographs using sophisticated facial recognition technology fits within the ambit of the statute. Moreover, in two instances 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.

Thus, the epicenter of biometric privacy compliance and litigation has been the Illinois statute. A Texas biometric statute offers similar protections, but does not contain a private right of action.

The biometrics landscape may be about to get more complicated. An amendment has been proposed to the Illinois biometric privacy, and a number of biometric privacy bills mostly resembling BIPA have been introduced in other state legislatures. While most of the new proposed statutes are roughly consistent with the Illinois statute, as noted below, the Washington state proposal is, in many ways, very different. If any or all of these bills are enacted, they will further shape and define the legal landscape for biometrics.

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.

Earlier this month, an Illinois state court approved a $1.5 million settlement in a class action against L.A. Tan Enterprises, Inc., operator (directly and through franchisees) of L.A. Tan tanning salons.  The settlement resolved allegations that L.A. Tan violated the Illinois Biometric Information Privacy Act (BIPA) by collecting Illinois members’ fingerprints for verification during check-in without complying with BIPA’s notice and consent requirements. (See Sekura v. L.A. Tan Enterprises, Inc., No. 2015-CH-16694 (Ill. Cir. Ct. Cook Cty. First Amended Class Complaint filed Apr. 8, 2016)).   Under the settlement, approximately 37,000 class members who had their fingerprints scanned at a L.A. Tan location in Illinois between a specified three-year period (Nov. 13, 2013 to August 11, 2016) will receive a pro rata share of the settlement. Moreover, L.A. Tan agreed to comply with BIPA in the future and ensure the compliance of its franchisees.

We’ve previously blogged about the National Telecommunications and Information Administration (NTIA) privacy multistakeholder process to address concerns associated with the emerging commercial use of facial recognition technology. Notably, last year, the self-regulatory initiative hit a stumbling block when nine consumer advocacy groups withdrew from the process due to a lack…