United States: States Continue To Fill Gaps In Privacy Legislation: Illinois Biometric Law Gains Traction And Serves As Model For Other States

Enacted in 2008, Illinois' Biometric Information Privacy Act (740 ILCS 14/1 or BIPA), generally requires companies to obtain a person's consent before collecting, capturing, or purchasing a person's "biometric identifier" or "biometric information." Since late 2015, at least six cases have been filed alleging claims under the statute, and the first reported settlement was approved for $1.5 million dollars on December 1, 2016. While Illinois and Texas are currently the only states with such laws on the books, five other states have pending biometric legislation in committee review.

The increase in cases filed in the last 14 months and potential new legislation in other states strongly suggest that companies should assess the biometric information its products or services collect, as updates may be needed for notice, consent, and data retention policies and practices.

Recent Case Law Developments

Most of the cases involving BIPA claims have been decided on the basis of whether the information at issue constitutes "biometric identifiers" or "biometric information" under the statute, or whether the plaintiffs' allegations sufficiently confer Article III standing. A recent ruling in the Northern District of Illinois, interpreting the definition of "biometric identifiers," allows a class action against Google Inc. to proceed. See Rivera v. Google Inc., No. 1:16-cv-02714 (N.D. Ill. Feb. 27, 2017).

While Google argued that the images at issue were excluded from BIPA because they are derived from photographs, and only facial scans done in person qualify as biometric identifiers, the Court rejected that reasoning, stating that "if Goggle simply captured and stored the photographs and did not measure and generate scans of face geometry, then there would be no violation of the Act." Rivera, slip op. at 15. After the plaintiffs' filed a second amended complaint, Google asked the Northern District on March 9 to amend its February 27, 2017 decision and stay the proceedings while the Seventh Circuit decides whether to grant Google's application for an appeal.

In January, a district court in New York dismissed a lawsuit involving BIPA, finding that the procedural violations of the notice and consent provisions are not by themselves, sufficient to confer standing. See Vigil v. Take-Two Interactive Software, Inc., No. 15-8211 (S.D.N.Y. Jan. 30, 2017). The Court's reasoning in Vigil was similar to the conclusions reached in McCollough v. Smarte Carte, Inc., No. 16 C 03777, 2016 WL 4077108, at *4 (N.D. Ill. Aug. 1, 2016), where the Court granted defendant's motion to dismiss on lack of standing, finding that failure to obtain prior written consent to retain fingerprint data was not a concrete harm.

Pending Legislation in Other States

Because Illinois provides a private cause of action, unlike Texas' statute which only allows for enforcement through the attorney general, BIPA serves as the model for other states enacting biometric laws. Other states considering such legislation include:

State Summary
Alaska Similar to BIPA, the bill prohibits the collection of an individual's biometric data without proper notice and consent, requires timely disposal after the data is no longer needed, and provides for a private right of action.
Connecticut

This bill takes a very different approach compared to BIPA, focusing only on prohibiting the use of facial recognition for marketing purposes.

Illinois

Illinois has recently proposed an amendment that would prohibit companies from requiring a person or customer to provide biometric identifier/information as a condition for the provision of goods or services, except to the extent necessary to conduct background checks or implement security protocols.

The amendment would not apply to companies that provide medical services, law enforcement agencies or governmental agencies.

Montana If enacted, the legislation prohibits a private entity from collecting, storing, and using a person's biometric data without a person's consent and establishes procedures for the sale, disclosure, protection, and disposal of biometric information.
New Hampshire Like BIPA, the bill would regulate the collection, retention, and use of biometric information by individuals and private entities. The bill grants aggrieved persons a private right of action.
Washington

While its core purpose appears similar to BIPA, several limitations narrow the bills overall effect. For example, the bill carves out an exception to any notice and consent requirements when biometric data is collected and stored "in furtherance of a security purpose."

The bill also provides that the prohibitions on disclosure and retention of biometric identifiers do not apply to disclosure or retention of biometric identifiers "that have been unenrolled" (a term suggesting anonymized or de-identified biometric data). Like Texas, the bill would not provide a private right of action.

Key Implications for Businesses

BIPA was passed in part because the Illinois legislature anticipated that companies would increasingly use biometric data to facilitate financial transactions, and unlike other personally identifiable information, cannot realistically be changed if subject to theft. The legislature's predictions were accurate as biometric information is utilized not only to process financial transactions, but to gain entry to cars and buildings, to pass airport security, and to login-in to accounts on mobile devices.

While the proposed legislation has not been passed yet, in any of the five states, there is a clear trend emerging to adopt state-level biometric legislation. As a result, businesses must ensure that its notice, consent, and disposal policies and procedures align with currently enacted legislation and are agile and amenable to updates as other states may endorse similar biometric statutes.

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
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.