United States: Clarity On The Illinois Biometric Privacy Act, The Supreme Court Weighs In

Seyfarth Synopsis: Following an opinion by the Illinois Supreme Court, the 9th Circuit will discuss the Illinois Biometric Privacy Act issue — whether the Act requires class plaintiffs to show that they suffered actual harm in order to seek statutory damages and injunctive relief. A California District Court certified a class of Illinois users who claim Facebook used their biometric data in a way that violated the Illinois Biometric Privacy Act. Facebook appealed the ruling arguing that the plaintiffs could not be considered "aggrieved" individuals as required by the statute.

The Case — Patel et. al. v. Facebook Inc., Case No. 18-80052, — is pending in the U. S. Court of Appeals for the Ninth Circuit. Plaintiffs allege that Facebook violated Illinois' BIPA when it unlawfully collected and stored biometric data on Facebook users without prior notice or consent. 2018 U.S. Dist. LEXIS 30727, *4.

Facebook filed a motion to dismiss the class action, asserting that plaintiffs lacked standing under Article III. Facebook argued that the collection of biometric information without notice or consent did not result in "real-world harms."

The District Court denied Facebook's motion, noting that BIPA's plain language supported a finding of standing. The court pointed to the subsections of the BIPA in so much that it "vested in Illinois residents the right to control their biometric information by requiring notice before collection and giving residents the power to say no by withholding consent." Since the plaintiffs in this case were never offered the opportunity to withhold consent, the court rejected Facebook's argument and found standing satisfied under the allegations. The District Court went on to certify the plaintiffs as a class; Facebook appealed the certification to the 9th circuit. The Court will issue an opinion on the appeal in the coming months.

In 2017 we blogged about an Illinois Appellate Court ruling which held that a Plaintiff must allege an actual injury to be "aggrieved" under the Act in order to seek statutory damages and injunctive relief. In that decision, the Court noted that "if the Illinois legislature intended to allow for a private cause of action for every technical violation of the Act, it could have omitted the word 'aggrieved' and stated that every violation was actionable." Rosenbach v. Six Flags Entertainment Corp., 2017 IL App (2d) 170317, *4.

The decision represented a win for employers because class action suits brought under the BIPA frequently consist of cookie cutter complaints merely alleging technical violations of the BIPA (i.e., failure to obtain written consent, failure to maintain a "publicly available" biometric privacy plan, and failure to provide notice of biometric retention and destruction policies) and not an actual injury (i.e., identity theft). Plaintiffs in Rosenbach filed an appeal to the Illinois Supreme Court; Oral arguments were heard on November 20, 2018.

On September 28, 2018, the Illinois Appellate Court in the First District held that a statutory violation alone was sufficient to establish standing in BIPA claims. In Sekura v. Krishna Schaumburg Tan, Inc., 2018 IL App (1st) 180175, the Court held that "the Act does not require actual harm in addition to a violation of the Act to file suit" pursuant to "both the plain language of the statute itself and its legislative history and purpose." In Sekura, the Plaintiff purchased a membership with L.A. Tan, which required her to scan her fingerprint.

In her complaint, the Plaintiff noted that L.A. Tan (1) never informed her of the specific purpose or length of time for which her information was stored, (2) that she was never informed of any biometric data retention policy, (3) she never signed, nor was she provided with a written release allowing L.A. Tan to collect or store her fingerprints, and (4) she never signed a release allowing L.A. Tan to disclose her biometric data with any third party.

The Court found this sufficient to satisfy the "aggrieved" person standard as required by the Act, reversing the Trial Court's decision. Defendant Schaumburg Tan, Inc., appealed the Appellate Court's Decision, an opinion on the case is pending.

On January 25, 2019, the Illinois Supreme Court issued a decision which reversed the Illinois Appellate Court decision in Rosenbach. The Supreme Court focused its analysis on the basic principles of statutory construction and the Illinois legislature's intent when drafting the Act.

A person may be "aggrieved" when "a legal right is invaded by the act complained of or his pecuniary interest is directly affected by the decree or judgment." The term "aggrieved" has been defined this way by Illinois courts long before the creation of the BIPA. The Court noted the Illinois legislature must have been "aware of that precedent and acted accordingly" when drafting the BIPA. Section 15 of the BIPA imposes a duty upon private entities with regard to the collection, retention, disclosure, and destruction of a person's or customer's biometric identifiers. Because section 20 of the BIPA authorizes a private right of action, — and offers no other enforcement mechanism — the Court provides that "it is clear the legislature intended for this provision to have substantial force."

Ultimately, the Court held that "an individual need not allege some actual injury or adverse effect, beyond violation of his or her rights under the Act, in order to qualify as an 'aggrieved' person."

Class action lawsuits alleging violations of BIPA have increased tremendously over the last few years. Following the Supreme Court's decision, it is likely that the number of BIPA cases filed will continue to increase. Therefore, employers should remain vigilant and ensure that they are in compliance with the BIPA's requirements.

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.

Authors
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
Tools
Print
Font Size:
Translation
Channels
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.

Disclaimer

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.

General

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