Julie O'Neill and Max Phillip Zidel
Privacy + Data Security
A recent decision indicates that failure to comply with the Illinois biometric privacy law may expose businesses to significant liability, even where there has been no actual harm to the plaintiffs.
Can a user of a cloud-based photo-sharing and storage service sue the provider of that service for extracting and retaining, without consent, the user’s facial scans from uploaded photos—even without any subsequent breach or sale of that data? How about an individual who is required to scan a fingerprint in order to use a season pass at an amusement park, also without any subsequent disclosure? In recent weeks, courts have given conflicting answers to these and similar questions under the Illinois Biometric Information Privacy Act (BIPA)—the United States’ toughest biometric privacy law. Specifically, the courts have disagreed about whether or not plaintiffs need to demonstrate actual harm, as opposed to a mere violation of the statute, in order to seek relief.
Biometric Privacy in the United States
BIPA is the most comprehensive biometric data privacy law in the United States. With its private right of action for any “person aggrieved” by a violation of the law, it is also the most frequently litigated. BIPA requires that a business provide notice and obtain consent prior to collecting or otherwise obtaining biometric data. A business may not sell or lease the data for profit, or disclose it, except under limited circumstances. The law also requires businesses to have a written policy on the length and purpose of their retention of biometric data, and to protect such data as they would other sensitive data. For negligent violations, individuals can recover the greater of $1,000 or their actual losses. For intentional or reckless violations, this increases to $5,000. Texas and Washington are the only other states that, to date, have laws specifically addressing biometric data, though they are less stringent. There is currently no similar federal law in place.
Google Photos Decision: No Actual Harm, No Standing
In a decision rendered on December 29, 2018 (“Google”), a Federal District court dismissed a suit against Google under BIPA for failure to allege any actual harm, a requirement for Article III standing. As part of its Google Photos service, Google had allegedly extracted facial scans from uploaded photos without required notice or consent, in order to, among other things, facilitate automatic labelling and aggregation of the photos. The ruling in Google followed a long line of decisions, under BIPA and other privacy statutes, that apply U.S. Supreme Court dicta that a “bare procedural violation” of a data privacy statute, in absence of any actual harm, is generally insufficient to establish standing. The court in Google reasoned that, since neither the unauthorized collection nor retention of biometric data was accompanied by any actual or potential disclosure of such data, the plaintiffs could not establish harm. While the plaintiffs produced evidence that software bugs in a different Google service, Google+, had led to the unauthorized disclosure of identifying data from millions of Google+ accounts, they could not establish that a similar breach had occurred or was expected to occur with respect to Google Photos. Unable to sufficiently establish this risk, the plaintiffs could not establish harm, and the case was dismissed for lack of standing.
Six Flags Decision: Violation of the Statute Is Sufficient for Standing
The Supreme Court of Illinois reached an opposite conclusion in a decision rendered a month later (“Six Flags”) holding that an alleged violation of BIPA, without more, is sufficient for standing under Illinois law. In Six Flags, the plaintiff argued that Six Flags Entertainment Corp. had violated her son’s rights under BIPA by obtaining a scan of his fingerprint for future entry to one of its amusement parks as part of the purchase of a season pass. Six Flags had allegedly failed to give the notice and obtain the consent required under the statute. Even though the plaintiff did not allege any disclosure of the data or other actual harm, the court sided firmly with the plaintiff on the issue of standing, stating: “To require individuals to wait until they have sustained some compensable injury beyond violation of their statutory rights before they may seek recourse, as defendants urge, would be completely antithetical to the Act’s preventative and deterrent purposes.” The case was remanded to the Lake County Circuit Court to continue proceedings.
Data Security Concerns and Future Litigation
The retention and use of biometric data present unique security challenges. Unlike other identifiers, such as PINs or Social Security numbers, biometric data is practically immutable and, consequently, extremely difficult to replace following a security incident. Biometric data could also be more accessible to nefarious actors: the copying of a fingerprint left on a doorknob, for instance, may be enough to access that individual’s smartphone or bank account. Concerns have also been raised about the potential commodification of or intrusion upon individual personhood that widespread adoption of biometric technology may entail.
It remains to be seen how future courts will treat Google, Six Flags, and other decisions under BIPA. Regardless of whether federal courts manage to separate the issue of standing from substantive issues under BIPA itself, the clear position taken in Six Flags means that no court, federal or state, will be able to ignore it. In addition, in future cases, concerns about security and/or personhood are likely to become more pronounced, which may also pave the way for more and more courts to follow the ruling in Six Flags. As the court in Google remarked in several places, even its decision was a “close” one. And at least one Federal District court had already adopted a position very similar to that taken in Six Flags in certifying a class action. The key takeaway is this: potential exposure to liability under BIPA and other biometric privacy laws is real, and companies and other organizations that collect biometric data need to ensure that they comply with applicable law.
 Illinois Biometric Privacy Act, 740 ILCS 14/1 et seq.
 Rivera et al. v. Google LLC, No. 1:2016cv02714 - Document 207 (N.D. Ill. 2018).
 Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016).
 Rosenbach v. Six Flags Entm’t Corp., 2019 IL 123186.
 See Patel v. Facebook Inc., 290 F. Supp. 3d 948 (N.D. Cal. 2018).
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