Emerging Biometric Laws: Considerations for Employers and Companies Collecting Data

By: Aravind Swaminathan, David T. Cohen, Rochelle Swartz, and Nicholas Farnsworth Orrick Herrington & Sutcliffe LLP

A recent decision from the Supreme Court of Illinois heightens the risks faced by companies collecting biometric information by...                            

A recent decision from the Supreme Court of Illinois heightens the risks faced by companies collecting biometric information by holding¹ that an individual who is the subject of a violation of Illinois’ Biometric Information Privacy Act (BIPA)—but who suffered no separate harm from the violation—is an ‘‘aggrieved party’’ with a cause of action under the statute.

THIS DECISION WILL ONLY FURTHER EMBOLDEN PLAINTIFFS’ lawyers to bring biometric privacy suits, and the risk to companies collecting biometric information will likely increase as newly enacted and proposed legislation comes into effect. This article discusses what happened, what is on the horizon, and some steps to consider.

Overview of the Illinois Biometric Information Privacy Act

The BIPA regulates private entities’ (defined broadly) collection, use, storage, and disposal of an individual’s ‘‘retina or iris scan, fingerprint, voiceprint, or scan of hand or face geometry’’ (defined as ‘‘biometric identifiers’’) or any information ‘‘based on an individual’s biometric identifier used to identify an individual’’ (defined as ‘‘biometric information’’). BIPA imposes several obligations on private entities in possession of biometric identifiers or biometric information, including requiring:

• The development of a written biometrics retention and destruction policy
• The disclosure of the content and purposes for which the biometric identifiers or biometric information are collected and used
• The procurement of a written release for the collection and use of biometric identifiers and biometric information
• The implementation of safeguards meeting ‘‘the reasonable standard of care within the private entity’s industry’’

Private entities failing to comply with their obligations under the statute may face litigation based on BIPA’s private right of action available to persons ‘‘aggrieved’’ by such statutory violations and could be liable for actual damages or, if greater, liquidated damages of $1,000 per negligent violation and $5,000 per intentional or reckless violation of the law.

Preliminary Challenges in Biometric Privacy Litigation

In BIPA and other privacy and cybersecurity litigation, defendants have two separate and independent ways to attack plaintiffs’ injury allegations:

• Challenge the plaintiff’s standing through either a federal court Article III challenge or a state court equivalent
• Argue that the plaintiff failed to plead or prove the injury redressable by the cause of action in question (e.g., that the plaintiff was not aggrieved by a violation of BIPA)

An example of a successful standing challenge is Rivera v. Google.² There, two individuals asserted that Google violated BIPA by applying its face-recognition program to images of them without their knowledge or consent. The U.S. District Court for the Northern District of Illinois held that the plaintiffs failed to demonstrate that they suffered a concrete injury from Google’s alleged collection or retention of the biometric data. It therefore concluded that the plaintiffs failed to establish a ‘‘case or controversy’’ under Article III of the U.S. Constitution, and that consequently federal courts lacked power to hear the suit.³ Notably, however, this decision did not permanently terminate the litigation. The plaintiffs from Rivera have refiled their claims against Google in the Circuit Court of Cook County, Illinois,⁴ where Google may argue that the plaintiffs likewise fail to satisfy the Illinois state constitution’s equivalent of Article III.

Impact of the Rosenbach Decision

The Supreme Court of Illinois in Rosenbach did not address Article III standing nor the Illinois state constitution equivalent, but rather focused on the circumstances in which a plaintiff can satisfy the injury requirement contained in BIPA itself—that is, the requirement that the plaintiff be ‘‘aggrieved.’’ In Rosenbach, a mother filed suit on behalf of her 14-year-old son, claiming that the fingerprinting practices of Six Flags in connection with their repeat-entry pass enrollment process violated BIPA⁵ by collecting the son’s fingerprints without informing him or his mother of ‘‘the specific purpose and length of term for which his fingerprint had been collected’’ and without obtaining either his or his mother’s written release or consent. In addition to other defenses, Six Flags argued that the plaintiff ‘‘had suffered no actual or threatened injury’’ and, as a result, wasn’t an aggrieved person eligible for the BIPA private right of action.

Emphasizing the importance of proper notice and the right to refuse consent, the court explained that ‘‘[w]hen a private entity fails to adhere to the statutory procedures . . . ‘the right of the individual to maintain [his or] her biometric privacy vanishes into thin air. The precise harm the Illinois legislature sought to prevent is then realized.’’’ Therefore, the court held that no actual injury, beyond a violation of BIPA, is required for a person to qualify as an aggrieved person and be entitled to seek liquidated damages and injunctive relief.

Takeaways

The Rosenbach decision has several important takeaways for businesses that collect or use personally identifiable information, including biometric identifiers and biometric information.

• Liability risks for alleged mishandling of biometric information are increasing. Several additional states have laws on the books, or are considering legislation, for biometric information. Although Illinois is currently the only biometric information statute with a private right of action,⁶ the risks for entities collecting biometric information are increasing, particularly if other jurisdictions use similar ‘‘aggrieved’’ language and adopt the Rosenbach rationale.
• The California Consumer Privacy Act of 2018 (CCPA). The CCPA introduced sweeping changes to the U.S. privacy landscape by granting California residents enhanced rights in relation to their personal information (which includes biometric information), as well as a private right of action for certain breaches of personal information.
• The proposed Massachusetts Senate Bill 341. The proposed bill would add a Consumer Data Privacy chapter to the Massachusetts General Laws, which would grant Massachusetts consumers similar rights to those provided under the CCPA in relation to personal information (which may include biometric information). Unlike the CCPA, the proposed bill would create a private right of action for a consumer who has ‘‘suffered [any] violation’’ of the bill and specifically states the intent that a violation of the bill ‘‘shall constitute an injury in fact to the consumer . . . and the consumer need not suffer a loss of money or property . . . to bring an action for a violation.’’⁷
• The proposed Washington Privacy Act, Senate Bill 5376 (WPA). The proposed WPA would create a new overarching privacy law in Washington state. The proposed law would create an enumerated set of consumer rights in relation to personal data (which includes biometric data) similar to those provided under the CCPA. Although the proposed law does not include a private right of action for aggrieved consumers, a violation of its provisions could result in enforcement by the attorney general.⁸
• The proposed New York Biometric Privacy Act, Senate Bill 1203 (BPA). The proposed BPA would create a new biometric-specific privacy law in New York similar to BIPA. The proposed law would create a private right of action for ‘‘[a]ny person aggrieved by a violation’’ of the statute.⁹
• Understanding which biometric identifiers/information are collected/used. Businesses across industries increasingly are (or are considering) using biometrics more frequently, including in relation to:
  • User verification (such as mobile device fingerprint authentication)
  • Workforce management (such as fingerprint-based time clocks)
  • Personal identification (such as facial recognition in photographs and video)

With potential liability in private actions or state attorney general enforcement proceedings for mere procedural violations, such as failure to provide adequate disclosure or obtain necessary release/consent, entities using (or considering using) biometrics should take steps to gain a deeper understanding of a business’s actual collection, use, storage, and disposal practices relating to biometrics. In that regard, many businesses would benefit from conducting a data mapping exercise and/or information audit to identify the information and practices that would be subject to privacy and cybersecurity laws, such as BIPA. Only with this kind of solid understanding can companies undertake to comply with the patchwork of laws that are emerging and ensure that they are complying with the procedures afforded to avoid the significant litigation risk. Once in place, companies can begin to revise notice, collection, use, and retention practices accordingly. Companies that don’t have the resources to undertake a data mapping effort should (at a minimum) understand whether they’re collecting biometrics and review privacy policies and terms of service to identify risks and take basic steps to manage them.

• Alternative defenses remain. Despite the Rosenbach decision being favorable to plaintiffs, defendants still have other defenses that can be raised in BIPA litigation. These include, but are not limited to:
  • Standing. It remains to be seen whether the Illinois Supreme Court will be open to dismissing BIPA litigation on constitutional standing grounds where the plaintiff suffers no harm apart from the alleged statutory violation. And, as noted above, Article III standing challenges may be viable in federal court.
  • Statutory interpretation. There are several terms and concepts under the biometric statutes that are still open to interpretation, such as the meaning of biometric identifiers; what conduct qualifies as the collection of biometric information; and whether practices are considered negligent, reckless, or intentional under BIPA. In addition, businesses may be able to argue that some of their obligations under the statute are satisfied by implicit messaging provided through the context of the process involved in the collection of biometric identifiers or biometric information.
  • Procedural defenses. Defendants are still able to assert the procedural defenses available to them in all lawsuits, including a failure to meet class certification requirements, improper venue, and lack of personal jurisdiction, among others.

Aravind Swaminathan (aswaminathan@orrick.com) is a partner at Orrick Herrington & Sutcliffe LLP and the global co-chair of the firm’s Cyber, Privacy & Data Innovation team. David T. Cohen (david. cohen@orrick.com) is of counsel at the firm and focuses on complex litigation, particularly in the area of privacy and data security. Rochelle Swartz (rswartz@orrick.com) is a managing associate in the Complex Litigation & Dispute Resolution group at the firm. Nicholas Farnsworth (nfarnsworth@orrick.com) is an associate at the firm focusing on state, federal, and international privacy and cybersecurity laws. 

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Related Content

1. Rosenbach v. Six Flags Entm’t Corp., 2019 Ill. LEXIS 7 (Jan. 25, 2019). 2. 238 F. Supp. 3d 1088 (N.D. Ill. 2017). 3. In so holding, the court departed from the conclusion of an analogous case, Patel v. Facebook, Inc., 290 F. Supp. 3d 948 (N.D. Cal. 2018), which upheld the Article III standing of consumers who alleged that Facebook applied facial-recognition software to create facial templates without consent. The Patel litigation is now pending in the U.S. Court of Appeals for the Ninth Circuit. 4. Rivera v. Google LLC, No. 2019CH00990 (Ill. Cir. Ct.). 5. According to the complaint, the fingerprinting process for the repeat-entry passes to the park is as follows: When individuals sign up for repeat-entry passes, Six Flags’ system ‘‘scans pass holders’ fingerprints; collects, records and stores ‘biometric’ identifiers and information gleaned from the fingerprints; and then stores that data in order to quickly verify customer identities upon subsequent visits by having customers scan their fingerprints to enter the theme park.’’ 6. The biometrics laws of both Texas (Tex. Bus. & Com. Code Ann. § 503.001) and Washington state (Wash. Rev. Code § 19.375.030) do not create a private right of action for individuals impacted by an entity’s violation of the statutes. However, both statutes grant the attorney general the power to enforce the statutory provisions, including through the imposition of civil fines and penalties.7. https://malegislature.gov/Bills/191/SD341. 8. https://app.leg.wa.gov/billsummary?BillNumber=5376&Initiative=false&Year=2019. 9. https://legislation.nysenate.gov/pdf/bills/2019/S1203.