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 the collection, retention, and disclosure of personal biometric identifiers and biometric information.  BIPA expressly provides that “any person aggrieved by a violation” of the BIPA may pursue money damages and injunctive relief against the offending party.  In interpreting what “aggrieved” means under BIPA, the Rosenbach court ruled that a “person aggrieved by a violation of [the] Act” must allege some harm (“[A] plaintiff who alleges only a technical violation of the statute without alleging some injury or adverse effect is not an aggrieved person under…the Act”).  While federal courts have weighed in on whether litigants have Article III standing when asserting mere procedural violations of BIPA’s consent and data retention requirements, it was not clear if such procedural violations, without any showing of harm or data misuse, were actionable under the statute.  Rosenbach was the first time an Illinois appellate court weighed in on the meaning of an “aggrieved” party under BIPA.

Following Rosenbach, we speculated whether the decision would curb the wave of BIPA class actions asserting procedural violations filed against employers and businesses that used biometrics to authenticate employees or customers; the answer to that question remains in flux, with subsequent rulings falling both ways.  For example, at least two Illinois trial courts followed Rosenbach in dismissing BIPA claims, though without intensive analysis of the issue. See: Rottner v. Palm Beach Tan, Inc., No. 15-CH-16695 (Ill. Cir. Ct. Mar. 2, 2018) (bound by Rosenbach‘s holding that neither liquidated damages nor injunctive relief is authorized under BIPA when the only injury alleged is a statutory violation; court stated that plaintiff allowed defendants to scan her fingerprint and there had been no publication of plaintiffs private information to sustain injury to a privacy right); Sekura v. Krishna Schaumburg Tan, Inc., No. 16-CH-04945 (Ill. Cir. Ct. Jan. 16, 2018) (brief order dismissing claims “[f]or the reasons outlined in Rosenbach”) (on appeal).

However, the recent California district court ruling in the Facebook biometric privacy litigation parted company with a reading of Rosenbach that would require a litigant to show an “actual” injury beyond the invasion of privacy rights outlined under BIPA and instead ruled that the plaintiffs had “sufficiently alleged” an intangible injury to a privacy right to be “aggrieved” under BIPA. It should be noted that the California court did look differently at Rosenbach and other cases involving voluntary fingerprinting where individuals knew that their biometric data would be collected before they accepted services as opposed to the social media photo tagging situation where such plaintiffs allege that they were not put on adequate notice that biometric data could be collected from uploaded photos.

This past month, in a notable ruling, an Illinois district court followed Rosenbach yet still declined to dismiss a suit brought by a former employee who asserted BIPA and negligence claims, among others, against a senior living center (“Defendant” or “Smith”) and its time clock vendor over the scanning of her fingerprints onto an employee biometric timekeeping device. (Dixon v. The Washington and Jane Smith Community – Beverly, No. 17-8033 (N.D. Ill. May 31, 2018)).  Specifically, the complaint alleged that Smith required new employees to have their fingerprints scanned by the defendant Kronos’s fingerprint scanner and entered into a database so employees could be authenticated when clocking in and out.  According to the plaintiff, Smith, among other things, failed to give adequate notice or obtain written consent before colleting her fingerprints, or post a biometric data retention policy.  Moreover – and really the allegation that pushed the complaint over the line – plaintiff claimed that, in addition to collecting and storing her biometric information, Smith also “systematically disclosed” that information to Kronos, the out-of-state, third-party vendor of Smith’s biometric time clocks, without informing her that it was doing so.