U.S. Chamber of Commerce comes out against BIPA class action as suits pile up

The U.S. Chamber of Commerce has come out in support of Facebook in its BIPA lawsuit currently before the courts, asking the 9th Circuit Court of Appeals to hear the company’s appeal of a recent decision to allow the suit to be certified as a class action, MediaPost reports.

Facebook filed its appeal after U.S. District Court Judge James Donato ruled that all Illinois residents with “faceprints” stored by the company are affected by its alleged violation of the state’s Biometric Information Privacy Act (BIPA).

“By wrongly certifying a class of potentially millions of Facebook users without requiring any showing of real-world harm beyond a bare statutory violation, the district court effectively certified a ‘no-injury’ class action,” the Chamber of Commerce writes in a proposed friend-of-the-court brief, as reported by MediaPost. “These types of class actions invite abusive litigation, impose enormous burdens on U.S. businesses, and in particular present substantial risks for technology companies, such as Facebook.”

Donato previously ruled that the plaintiffs’ property interest in their biometric data was harmed by the statutory violation.

The Chamber of Commerce also argues that forcing Facebook to comply with Illinois regulations would trump the positions of other states and erode the clarity that businesses require to operate nationally.

A report from law firm McAfee & Taft published by JD Supra warns that the Facebook lawsuit demonstrates the significant impact that state laws can have on companies collecting biometric data.

The warnings come in the same week that another potential class action suit has been filed under BIPA, this one against liquor store chain Binny’s Beverage Depot, as reported by Law360. An employee alleges that the company’s fingerprint time and attendance system was implemented without their consent, or the required disclosure of its storage practices for biometric data.

Complainant Matt Burger claims that the company knows it is a target for hackers, and associates biometric data with employee’s Social Security numbers and other identifiers, putting their privacy at risk. The suit also says that the personal data has also been shared with third parties, including a payroll processor and a data storage provider.

Experts told Law360 that the recent wave of lawsuits under the decade-old law is due to the increase in popularity of fingerprint timekeepers.

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