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Privacy groups urge Illinois Supreme Court to rule for plaintiff definition of harm in BIPA suit

Privacy groups urge Illinois Supreme Court to rule for plaintiff definition of harm in BIPA suit

A coalition of privacy advocacy groups have filed an amici curiae brief urging the Illinois Supreme Court to rule that a party can qualify as “aggrieved” under the state’s Biometric Information Privacy Act (BIPA) by having biometrics collected contrary to the act’s terms, overturning a lower state court decision. The defendant in Rosenbach v. Six Flags, the case on appeal, contends that for a party to be “aggrieved” they must show additional harm.

Groups signing the brief include the Electronic Frontier Foundation (EFF), the American Civil Liberties Union (ACLU), the Center for Democracy & Technology, and the Chicago Alliance Against Sexual Exploitation. They argue in the brief that advances in biometric collection and storage in the decade since BIPA was passed have made the importance of enforceable guarantees of notice and consent clear. They also argue that a lack of notice and consent violate the law and harm individual privacy interests. The judge in the BIPA case against Facebook has previously ruled that violating the Act’s consent requirements constitutes harm against the “property interests” of individuals, making them “aggrieved.” They additionally contend that notice is a substantive right under BIPA.

“EFF and our fellow amici argue that a person is “aggrieved,” and may sue, based just on capture of their biometric information without notice and informed consent,” the EFF writes in a post to its website. “We offer several reasons. First, biometric surveillance is a growing menace to our privacy. Our biometric information can be harvested at a distance and without our knowledge, and we often have no ability as individuals to effectively shield ourselves from this grave privacy intrusion. Second, BIPA follows in the footsteps of a host of other privacy laws that prohibit the capture of private information absent informed opt-in consent, and that define capture without notice and consent by itself as an injury. Third, allowing private lawsuits is a necessary means to ensure effective enforcement of privacy laws.”

Further, the EFF identifies the proliferation of biometric technology for commercial purposes as a threat to privacy, and notes that the U.S. Chamber of Commerce recently filed an amicus brief in a BIPA lawsuit suggesting a federal appellate court should interpret the law narrowly.

A lawsuit was recently filed against steelmaker A. Finkle & Sons Co. over its used of biometrics for employee time and attendance.

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