Maryland and California look to join the list of states that not only regulate biometric data but provide consumers with the opportunity to seek hefty statutory damages and attorney’s fees from offending businesses. Similar to Illinois’ oft-litigated Biometric Information Privacy Act (“BIPA”), both bills would also (i) require written consent prior to the collection of biometric information; (ii) impose BIPA-like security measures, and (iii) mandate specific retention criteria, as described below.
Continue Reading Maryland and California Propose Biometric Privacy Legislation that Would Include Illinois-Like Private Rights of Action
Illinois Court of Appeals finds one year and five year statute of limitations for BIPA claims
On September 17, 2021, the Illinois Court of Appeals for the First District ruled that some BIPA claims are subject to a five year statute of limitations, while others must be brought within one year. In Tims v. Black Horse Carriers, Inc., 2021 IL App (1st) 200563, the appellate court accepted a certified question
Illinois Attorney General Kwame Raoul talks to Reed Smith about consumer privacy, biometrics, and data breaches
In a recent Q&A with Illinois Attorney General Kwame Raoul, the first term AG discusses potential changes to data breach laws in Illinois and whether his state could implement a privacy statue similar to the California Consumer Privacy Act (CCPA), the effectiveness of federal data breach legislation, and reasonable steps that businesses could take to
CCPA litigation is here: putative class action filed for alleged notice and collection violations
Although the California Consumer Privacy Act (CCPA) specifically precludes private lawsuits except for those resulting from certain data breaches, that has not stopped at least one plaintiff from bringing a putative class action based on an alleged CCPA violation.
A proposed class action was filed on February 27, 2020, in the Southern District of California against Clearview AI (Burke v. Clearview AI, Inc., S.D. Cal., No. 3:20-cv-00370-BAS-MSB). The complaint alleges that Clearview’s facial recognition technology – which scrapes, without notice or consent, social media websites for images of consumers’ faces – violates, among other laws, both the CCPA and the Illinois Biometric Information Privacy Act (BIPA). According to the complaint, Clearview’s facial recognition software uses the billions of scraped images in its database to generate a type of biometric information, known as a “faceprint,” to match a face to other personally identifiable information; it then sells access to the faceprint database to law enforcement agencies and private companies. The complaint charges that Clearview improperly collected personal information without properly notifying consumers.
Uncertainty persists in biometric litigation
Companies facing class action litigation stemming from Illinois’ Biometric Privacy Act, 740 ILCS 14/1 et seq. (BIPA), will not get conclusive guidance from the U.S. Supreme Court on the issue of Article III standing. Despite the substantial increase in BIPA class actions filed between 2018 and 2019, and amici briefs imploring the Supreme Court to review a Ninth Circuit holding for one such case, the high court declined to weigh in and denied certiorari. As a result, questions persist as to whether class action plaintiffs bringing BIPA claims in federal court have Article III standing due to continued inconsistent treatment within the Ninth Circuit and elsewhere regarding what constitutes real, concrete and particularized injury in cases relating to intangible harms. Therefore, companies with Illinois employees or consumers will continue to face uncertainty, and plaintiffs may aggressively shop for favorable fora (including California) to bring such cases.
Continue Reading Uncertainty persists in biometric litigation
Biometric privacy: The year in review and looking toward 2020
2019 signalled significant growth in both regulatory focus and litigation involving biometric privacy. The passage of the California Consumer Privacy Act (CCPA), the addition of biometrics to numerous state data breach notification laws (including New York), and continued class action lawsuits emanating from Illinois’ Biometric Information Privacy Act (BIPA) made biometrics a trend line in 2019 that shows no signs of slowing down in 2020. State legislatures will continue to take note of BIPA’s impact in Illinois and will watch closely as the CCPA is effective as of January 1, 2020, taking cues as to whether or how to implement statutory and regulatory frameworks for biometrics in their own states. Organizations that collect and use consumer or employee biometric data should be aware of their obligations and be on the lookout for more activity on both the regulatory compliance and litigation fronts in the new year.
BIPA provides an express private right of action for consumers who claim that their biometric privacy rights have been violated. In January of 2019, the Illinois Supreme Court affirmed this right when it ruled in Rosenbach v. Six Flags Entertainment Corp. that a plaintiff need only allege a violation of BIPA, not an allegation of actual harm, in order to plead a claim under the Act. Since this decision, BIPA has continued to spawn an onslaught of biometric privacy class actions.
Continue Reading Biometric privacy: The year in review and looking toward 2020
The facial scan that launched a thousand laws: biometric privacy legislation trend continues to grow nationwide
Many states are following in the footsteps of Illinois’ Biometric Information Privacy Act (BIPA), a law that has led to an increase in the volume of class action privacy litigation and highlighted the importance of enterprise-level management of biometric data (e.g., fingerprint, voiceprint, and retina, facial, or iris image). Organizations that collect and use