Article: June 2019: The Rise of Biometrics Laws and Litigation

In recent years, there has been a significant rise in litigation, as well as legislation, concerning the use and collection of biometric data. Biometrics refers to the process of detecting and recording a person’s unique physiological characteristics such as a person’s fingerprints, iris pattern, face or voice, usually for identification and access control. Since biometric identifiers are unique to individuals and do not change with age, they are more reliable in verifying identity than token and knowledge-based methods, such as identity cards and passwords. The collection of biometric identifiers, however, raises privacy concerns about the ultimate use of this information, especially as an individual’s biometric identifiers cannot be changed if compromised. 

Several states have narrow biometric privacy laws, constraining collection of biometric data from K-12 students, or prohibiting state agencies from using biometric data in connection with ID cards, as examples.  Currently, only three states (Illinois, Texas, and Washington) have comprehensive biometric privacy laws in place, with a fourth (California) set to go into effect on January 1, 2020.  The first comprehensive legislation, Illinois’s Biometric Information Privacy Act (“BIPA”), has been in effect since October 2008, but litigation under the statute began in earnest only recently in 2015, when several high profile suits were brought against social media websites. In just the past two years, over 200 class action complaints have been filed under the statute, vaulting BIPA into the spotlight as one of the hottest class action trends.  (Although the biometric privacy laws of Texas and Washington are based on BIPA, both lack BIPA’s private right of action. See Tex. Bus. & Com. Code § 503.001; RCW 19.375 et seq.)

As BIPA litigation continues to increase in Illinois, more states are considering legislation to regulate the collection of biometric data. A federal bill was also introduced in March 2019 that would prohibit certain entities from using facial recognition technology and data without first obtaining user consent. 

This article surveys the current legal landscape surrounding the collection and use of biometric data, and the implications for companies in the coming years—starting with the BIPA and the California statute, and ending with a look at the proposed state and federal legislation.

Illinois.  BIPA regulates the collection and storage of “biometric identifiers,” which is defined as a “retina or iris scan, fingerprint, voiceprint, or scan of hand or face geometry.” 740 ILCS 14/10. This definition excludes other data points such as photographs, demographic data, and writing samples. Similarly, the law also governs “biometric information,” defined as “any information, regardless of how it is captured, converted, stored, or shared, based on an individual’s biometric identifier used to identify an individual.” Id. This provision is intended to prevent organizations from circumventing BIPA by converting biometric identifiers into other formats.

Under BIPA, before collecting or storing biometrics, a private entity (including individuals) must first: (1) provide written notice to individuals that the collection will occur as well as the purpose and length of the collection; and (2) receive informed written consent from the individual to proceed with the collection. Moreover, before sharing biometric data with third parties, a private entity must first obtain additional consent beyond the initial required consent. 740 ILCS 14/15(d)(1). Private entities cannot “sell, lease, trade, or otherwise profit from” an individual’s biometric information, though it can “disclose, redisclose, or otherwise disseminate a person’s or a customer’s” biometric information if the person consents, or the disclosure is required by law. 740 ILCS 14/15(c)-(d). Private entities must also destroy collected biometric data once the purpose for which it was collected “has been satisfied,” or within three years of the organization’s last interaction with the individual, whichever occurs first. 740 ILCS 14/15(a), (c).

BIPA provides for a private right of action that allows “[a]ny person aggrieved” to seek $1,000 for each “negligent” violation of the act, and $5,000 for each “intentional or reckless” violation, plus attorneys’ fees and costs. 740 ILCS 14/20. BIPA does not define what it means to be “aggrieved” by a violation of the act, leaving it to the courts to determine what level of harm a plaintiff must experience to have statutory standing. This has led BIPA defendants to argue that plaintiffs must suffer some type of actual harm such as monetary damages or injury caused by misuse of the data to assert a BIPA claim, and that mere technical violations of BIPA are insufficient to confer statutory standing. This was the key issue to be decided by the Illinois Supreme Court in Rosenbach v. Six Flags Entertainment Corp., Case No. 2019 IL 123186, 2019 WL 323902 (Ill. Jan. 25, 2019). In a highly anticipated decision that will affect more than 200 pending cases, the Illinois Supreme Court held in January 2019 that plaintiffs need not “plead and prove that they sustained some actual injury or damage beyond infringement of the rights afforded them under [BIPA]” to have standing to sue. Id. at *7.

In Rosenbach v. Six Flags, Plaintiff Stacy Rosenbach claimed that the Six Flags amusement park collected her 14-year-old son’s fingerprints when he accessed a season pass, which she never consented to. The class action complaint asserted that Six Flags violated BIPA’s procedural requirements by, among other things, failing to inform class members in writing that the biometric information was being collected, or obtain written releases from the class members before collecting biometric information.

Six Flags contended that Rosenbach and other class members had to show that some injury resulted from the collection of their biometric information to qualify as a “person aggrieved” under the statute. The appellate court agreed, holding that “a plaintiff who alleges only a technical violation of the statute without alleging some injury or adverse effect is not an aggrieved person under . . . the act.”

The Illinois Supreme Court reversed. It held that Six Flags’ “contention that redress under the act should be limited to those who can plead and prove that they sustained some actual injury or damage beyond infringement of the rights afforded them under the law would require that we disregard the commonly understood and accepted meaning of the term ‘aggrieved’; depart from the plain and, we believe, unambiguous language of the law; read into the statute conditions or limitations the Legislature did not express; and interpret the law in a way that is inconsistent with the objectives and purposes the Legislature sought to achieve.” Id. at *7. Rather, “an individual need not allege some actual injury or adverse effect, beyond violation of his or her rights under the Act, in order to qualify as an ‘aggrieved’ person and be entitled to seek liquidated damages and injunctive relief pursuant to the Act.” Id. at *8. To require otherwise “would be completely antithetical to the Act’s preventative and deterrent purposes.” Id. at *7. The court noted the ease with which a private entity could comply with the law, stating that “[c]ompliance should not be difficult; whatever expenses a business might incur to meet the law’s requirements are likely to be insignificant compared to the substantial and irreversible harm that could result if biometric identifiers and information are not properly safeguarded . . . .” Id. at *7.

This decision is likely to result in an increase in new BIPA lawsuits, with outcomes likely to be highly fact specific. Accordingly, companies that engage in the collection of biometric information from individuals in Illinois should closely examine how such information is collected, used, and shared, and evaluate compliance with BIPA. 

California. The California Consumer Privacy Act (“CCPA”) goes into effect on January 1, 2020. It is the first state privacy law modeled on the European Union’s General Data Protection Regulation (GDPR). The law provides consumers more control over not only their biometric data, but many other types of personal information as well—thus making its scope much broader than BIPA. “Personal information” is defined under the CCPA as “information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household.” Cal. Civ. Code § 1798.140(o). The addition of the term “household” adds a dimension to a privacy law that is largely uncharted territory, and includes information that is not necessarily associated with a specific individual.

The CCPA also lists a wide range of examples of protected “personal information,” including but not limited to:

• “Biometric information,” defined as “an individual’s physiological, biological or behavioral characteristics, including an individual’s deoxyribonucleic acid (DNA), that can be used, singly or in combination with each other or with other identifying data, to establish individual identity”;
• “Audio, electronic, visual, thermal, olfactory, or similar information”;
• “Identifiers” such as social security numbers, drivers’ license numbers, online identifiers, email addresses;
• “Unique personal identifiers” such as device identifiers and Internet Protocol addresses;
• “Geolocation data”;
• “Commercial information” such as purchase histories or records of personal property; and
• “Internet or other electronic network activity information.”

“Personal information” does not include publicly available information. However, the CCPA specifically states that “biometric information collected by a business about a consumer without the consumer’s knowledge” does not constitute “publicly available” information. Id. § 1798.140(o)(2).

Generally, the CCPA provides California residents: (1) the right to know what personal information large corporations are collecting about them; (2) the right to tell businesses not to share or sell their personal information; and (3) protections against businesses that compromise their personal information. Id. § 1798.100.

The CCPA applies only to for-profit entities that collect and process the personal information of California residents, do business in California, and meet at least one of the following criteria: (1) generate annual gross revenue in excess of $25 million; (2) receive or share personal information of more than 50,000 California residents annually; or (3) derive at least 50 percent of its annual revenue by selling the personal information of California residents. Id. § 1798.140(c). Nonprofit businesses, as well as companies that do not meet any of the three above thresholds, are not required to comply with the CCPA. Id.

The CCPA provides consumers a private right of action if their personal information “is subject to an unauthorized access and exfiltration, theft or disclosure as a result of the business’ violation of the duty to implement and maintain reasonable security procedures and practices.” Id. § 1798.150. Consumers can file individual or class action lawsuits, and can recover between $100 to $750 in statutory damages per incident, or actual damages. Id.

Thus, although the type of personal information protected by the CCPA is much broader in scope compared to BIPA, the CCPA appears to require a showing of harm greater than required by BIPA before a private suit can be brought—requiring a showing of unauthorized access and “exfiltration, theft or disclosure,” compared to BIPA’s allowance for any “aggrieved person” to bring suit. Of course, the scope and meaning of this language is likely to be further developed by courts. The statutory damages for violations of the CCPA (up to $750 per incident) are substantially lower than BIPA (up to $5000 per incident). In any event, this private right of action should be expected to attract the plaintiffs’ bar and class action litigation, just as BIPA has in recent years.

Recent Biometrics Privacy Legislation. More states are considering legislation to regulate the collection of biometric data, including:

• Florida: In February 2019, the “Florida Biometric Information Privacy Act” was introduced in both the House and Senate. Florida’s proposed laws closely track Illinois’s BIPA, regulating private companies’ collection, storage, and dissemination of individuals’ biometric information. The proposed laws provide for a private right of action, which is framed in terms identical to BIPA, and allows “any person aggrieved by a violation” to proceed in court. Also similar to BIPA, the proposed laws call for the imposition of liquidated damages in the amount of $1,000 for negligent violations, $5,000 for intentional or reckless violations, or actual damages if greater, plus reasonable attorney fees. If passed, the new Florida law could take effect as early as October 2019.
• Arizona: Arizona HB 2478 was introduced on January 28, 2019, which, if passed, will prohibit entities from capturing, converting, or storing an individual’s biometric identifier in a database for a commercial purpose unless (1) it provides “a mechanism to prevent the subsequent use of a biometric identifier for a commercial purpose; or (2) advance notice [is] provided and consent [is] obtained from the individual.” HB 2478 does not create a private right of action.
• Massachusetts: Another recent privacy bill to encompass biometric information is Massachusetts Bill S.120, introduced on January 22, 2019. It is a hybrid of the BIPA and Texas/Washington models, but is not limited solely to biometric data. The bill requires companies collecting consumer personal information—which includes all information “relating to an identified or identifiable consumer” including biometric data—to put the individual on notice of the data collection before or at the time of collection, respond to opt out requests, and provide the individual with the right to access and/or delete the collected data. The bill provides a private right of action, but it does not require affirmative written consent.
• New York: New York lawmakers introduced NY SB 1203 on January 11, 2019, which regulates the collection of “biometric identifiers” and “biometric information.” The proposed law is substantially similar to BIPA, and includes a private right of action. This is the third year New York has tried to pass this legislation.

A bipartisan federal bill was also recently introduced in the Senate on March 14, 2019 to regulate the commercial applications of facial recognition technology. The bill, “The Commercial Facial Recognition Privacy Act of 2019” (“the Act”), would prohibit certain entities from using facial recognition technology and data without first obtaining user consent. See S.847, available at https://www.congress.gov/bill/116th-congress/senate-bill/847/text. “Facial recognition data” is defined under the Act as any unique attribute or feature of the face of a consumer that is used by facial recognition technology to uniquely identify a specific individual, while “facial recognition technology” is defined as technology that analyzes facial features and is used for the purposes of unique personal identification. S.847 § 2(5).

The Act prohibits controllers (i.e., the entities making decisions regarding how data is processed) from knowingly using facial recognition technology to collect facial recognition data unless the controller obtains affirmative consent from the consumer and provides the consumer with proper notice. Id. § 3. Such notice must: 

• Inform consumers that facial recognition technology is present;
• Provide information about where the consumer can learn more about the facial recognition technology being used; and
• Provide documentation that includes information explaining the capabilities of the technology in terms that consumers can understand.

There is no private right of action under the Act. Instead, violations of the Act may be enforced by the FTC or a state’s attorney general. Id. § 4.

The Act expressly states that it does not preempt or affect any state statute or regulation currently in effect, except to the extent that the state statute or regulation is “inconsistent” with the provisions of the Act. Id. § 6. Notably, state statutes and regulations will not be considered inconsistent with the Act if they provide consumers greater protections than those provided in the Act. Id. Thus, if passed, it does not appear that the Act will preempt stricter state laws that regulate facial recognition technology, such as BIPA and the CCPA.

Conclusion. In light of the recent Illinois Supreme Court decision, BIPA litigation is likely to increase. The broad protections of the CCPA may also encourage similar class action litigation once it becomes effective in 2020. Biometric privacy issues are likely to continue growing in scope as more companies begin to use this technology and as more jurisdictions pass biometric-focused legislation.