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Illinois Supreme Court ruling to clarify legal harm of biometric collection procedure violations

Illinois Supreme Court ruling to clarify legal harm of biometric collection procedure violations

A suit against Six Flags Entertainment Corp. for violating the consent requirements of Illinois’ Biometric Information Privacy Act (BIPA) is heading to the state’s Supreme Court to determine the threshold for “harm” under the regulation, Bloomberg Law reports.

The definition of “aggrieved” under BIPA has been contented in various legal venues for a number of cases, and several privacy groups urged the Illinois Supreme Court to accept the plaintiff’s definition earlier this year. A state appeals court ruled that plaintiff Stacy Rosenbach did not have standing to sue six flags in December, and if the court upholds the ruling that a technical violation does not constitute harm, Jeffrey D. Neuburger, a partner with New York law firm Proskauer Rose LLP told Bloomberg Law that it would ultimately spell defeat for many BIPA suits.

A court spokesperson said the oral arguments will likely be delivered during the third week of November.

In an article for the National Law Review, Neuburger writes that clarification of the legal landscape may take time, and that “even a pro-defendant ruling affirming the appellate court may not be a cure-all for the wave of suits.”

In a recent ruling on a case brought by a customer against a tanning salon franchisee (Sekura v. Krishna Schaumburg Tan, Inc.), the National Law Review reports that an Illinois appellate court reversed the dismissal of the case by a lower court, on grounds that having disclosed the plaintiff’s fingerprint data to a third party is sufficient to make the plaintiff “aggrieved,” even if it agreed with its sister court’s decision in the Rosenbach case.

“To be clear, we find that the statutory violations to plaintiff’s privacy constituted harm even without disclosure, but the disclosure in the case at bar makes it distinguishable from Rosenbach,” the judge wrote.

Ultimately, the future of BIPA lawsuits could be decided either in the courts or state legislature, where new legislation substantially revising BIPA is currently stalled at the Senate Assignment Committee.

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