![]() ![]() Interestingly, BIPA originally was enacted in response to a situation that presents a cloudy issue as to actual versus potential harm. The court is expected to render a decision within the next few months. The defendants pressed the point that interpreting BIPA to allow for private enforcement of technical violations has opened the floodgates to “no-injury lawsuits,” and argued that, while a company that fails to comply with BIPA’s notice-and-consent requirements is liable if the information it collects is compromised or misused in violation of the law, collection alone fails to trigger liability.ĭuring oral argument, several justices appeared to side with the plaintiff, citing collection of biometric data itself without notice and consent as a potential “irreparable harm” and noting that the purpose of the statute was to prevent actual harm from occurring in the first place. The plaintiff in the case has asserted a claim based on a technical violation of the statute: her teen son’s fingerprint scan was collected by the amusement park to access a season pass, but the park failed to comply with the notice and consent requirements of BIPA. What the court decides has the potential to spur an increase in biometric litigation or render BIPA toothless. The court is set to answer the question of whether persons “aggrieved” by a violation of the statute must allege that they suffered actual harm, or if a technical violation of the statute is sufficient to establish standing. To date, courts applying BIPA have been proceeding without a definitive interpretation by the Illinois Supreme Court of the nature of the harm required to demonstrate a violation of the statute. ![]() Many putative class actions have been filed under the law in recent years, both inside and outside of Illinois, due to BIPA’s private right of action and per-violation statutory penalties of $1,000 or more. BIPA makes it unlawful for private entities to collect, store, or use biometric data without first providing notice and obtaining express consent. concerning the collection and use of biometric data. The Illinois Biometric Information Protection Act (BIPA) is currently the most important statute in the U.S. But all eyes are on one case before the Illinois Supreme Court that could dictate the course of future legislation when the court decides if someone must actually be harmed by the capture of biometric information in order to sustain a lawsuit. Laws in several states regulate the collection, use and storage of fingerprints, face and voice identifiers, retina scans, and other “biometric” information. Hunton Andrews Kurth partners Torsten Kracht and Lisa Sotto and associate Bennett Sooy examine the potential impact of the upcoming ruling. A few state laws regulate the collection and use of such data, but should a company be held liable for mere collection if there is no actual harm from improper use? Six Flags is fighting a lawsuit on the issue before the Illinois Supreme Court and the upcoming decision could impact privacy laws in other states. ![]() More companies are collecting “biometric” information from employees and consumers to provide services that are authorized through the use of facial recognition technology and fingerprint scans. ![]()
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