United States: Pending Federal Cases Could Have Implications For Future Litigation Under The Illinois Biometric Information Privacy Act

In two recent, related decisions, U.S. District Judge James Donato from the Northern District of California allowed plaintiffs to proceed on claims against Facebook under the Illinois Biometric Information Privacy Act ("BIPA"), finding that non-compliance with BIPA's notice and consent requirements provided sufficient injury for federal Article III standing. The decisions are Patel v. Facebook Inc., 2018 U.S. Dist. LEXIS 30727 and Gullen v. Facebook, Inc., 2018 U.S. Dist. LEXIS 34792. While these decisions add another arrow in the quiver of plaintiffs' attorneys filing BIPA class actions, as federal courts continue to reach different conclusions about the sufficiency of such allegations for Article III standing purposes, the fact that the plaintiffs do not allege any tangible injuries may still prove problematic for them as the cases progress.

BIPA is intended to protect Illinois residents' biometric information, defined as information derived from "a retina or iris scan, fingerprint, voiceprint, or scan of hand or face geometry." Companies collecting such information must, among other requirements, provide notice to residents that the information is being collected and explain how it will be used and how long it will be stored. The company must obtain a written release from the resident for collection and subsequent use. BIPA provides residents with a private right of action whereby individuals can seek liquidated damages of $1,000 per negligent violation or $5,000 for intentional or reckless violations. Since 2008, there have been several federal and state cases filed by plaintiffs with mixed results, including on the question of whether alleged non-compliance with BIPA's notice and consent provisions are sufficient "injuries in fact" for Article III standing. Courts finding that such allegations are not sufficient include McCollough v. Smarte Carte, Inc., No. 16 C 03777, 2016 WL 4077108 (N.D. Ill. Aug. 1, 2016) and Vigil v. Take-Two Interactive Software, Inc., 235 F. Supp. 3d 499, 513 (S.D.N.Y, 2017). In McCollough, the court reviewed allegations that the defendant failed to notify or receive consent prior to scanning fingerprints used to lock and unlock a storage locker. The court found that allegations about such technical violations were not sufficient and that there would be no injury if the company held the fingerprints for longer than the duration of the rental, unless such data was disclosed or at risk of disclosure. The court in Vigil reached a similar conclusion, finding that plaintiffs did not allege injury in fact where they scanned and uploaded their faces to create an online avatar for a video game but did not receive notice that the facial scans would be stored.

In rejecting Article III standing in both cases, the courts described the purpose of the statute to protect against misuse or disclosure of biometric information. Conversely, an Illinois federal judge granted Article III standing to a plaintiff in Monroy v. Shutterfly, Inc., No. 16 C 10984, 2017 WL 4099846 (N.D. Ill. Sept. 15, 2017), characterizing the purpose of the statute as preventing invasions of privacy (as opposed to misuse or disclosure). The court found the plaintiffs' allegations sufficient because Shutterfly allegedly collected biometric information from a photo uploaded by a third party without the plaintiff's consent.

Facebook Cases

The Facebook cases, filed and consolidated in the past few years, involve allegations that Facebook's "Tag Suggestions" feature for photographs uploaded to Facebook collects and stores biometric information without providing notice to the users or seeking their consent to collect and store such information. The complaints also allege that Facebook failed to inform the plaintiffs of the specific purpose or length of time such information would be stored and did not provide a retention schedule or guidelines for storage.

In late February and early March 2018, U.S. District Judge James Donato decided that plaintiffs in the Facebook cases met Article III standing requirements. The court found that BIPA's statutory provisions at issue were established by the state legislature to protect the plaintiffs' concrete interest. As such, the alleged procedural violations of Facebook infringed the privacy rights of the plaintiffs bestowed by the Illinois legislation resulting in an intangible harm that constitutes a concrete injury in fact. The court distinguished this case from other decisions involving personal information by stating that biometric information is unique in that, if misused, a resident cannot take measures to mitigate such risk given that it has information unique to that individual.

Statutory Standing

The Facebook decisions, notably, do not implicate the Illinois appellate court's December 2017 holding in Rosenbach v. Six Flags & Great America, 2017 IL App (2d) 170317, that any private plaintiff bringing a BIPA claim must prove "actual harm or adverse consequences" beyond technical statutory violations. Ropes & Gray issued a prior Alert on the Six Flags case, which is available here. Meeting the "aggrieved" person standard in Six Flags could be a higher bar than what is required for Article III standing. Indeed, on March 16, 2018, Facebook took this exact position in its motions for summary judgment, arguing that the court should enter judgment in its favor because the plaintiffs failed to prove that they were aggrieved by the alleged violations of BIPA. Should the court reach a decision on the question of whether the bar for statutory standing under BIPA is higher than the bar set by Article III, it would likely be the first court to do so, and as such, the court's decision could have significant implications for BIPA litigation going forward. Ropes & Gray will continue to closely monitor litigation developments.

Regardless of outcome of the Facebook cases, companies should take measures to comply with BIPA given the increased threat of litigation and potential large classes of individuals.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions