Appellate court rules biometrics collection alone establishes harm as Washington considers following BIPA

The Illinois State Supreme Court’s ruling that harm is established under the regulation by procedural violations in the use of biometric systems applies even if the collected biometrics are not stored or used, the state’s First District Appellate Court has ruled, the National Law Review reports. The Appellate Court rejected an attempt by the defendant in a BIPA suit to limit the scope of the State Supreme Court’s ruling in Rosenbach v. Six Flags Entertainment Corporation, which would have forced the plaintiff to establish some other legal standing for the suit.

The Rosenbach ruling leaves the viability of some defenses unclear, according to the National Law Review, but the ruling in Rottner v. Palm Beach Tan, Inc. provides the first indication of how appellate courts will interpret the Rosenbach decision.

Another BIPA suit claiming a procedural violation has been filed against Trilogy Warehouse Partners II LLC and Doe Defendants 1-10 by employee Isaac Brown, the Madison Record reports.

The Warehouse allegedly used a fingerprint time and attendance system without providing the required notice or obtaining consent, according to the plaintiff.

Hundreds of suits have been filed under BIPA, many or most relating to procedural violations and employee time and attendance tracking systems. Legislation amending the law to remove the right of private action is currently in committee in the State Senate.

The next front for biometric legal suits

The Washington Privacy Act (WPA) is set to become the second major privacy legislation in the U.S. following recent development in both houses of the state legislature, according to a blog post by law firm Manatt, Phelps & Phillips, LLP. The WPA includes some similar provisions to the California Consumer Privacy Act (CCPA), which was passed in June, but in some ways goes further, the post says.

Washington State Senators passed the proposed bill by a 46-1 vote in early March, and a similar bill is poised to likewise breeze through the House. The few major differences between the versions in the two legislative chambers include a right of private action in the House version, though with a 30-day right to cure and without a right to seek legal costs. The Senate version also restricts applicability to businesses with data belonging to a certain number of people, or deriving more than half its gross revenue from personal data sales, while the House version would apply to all businesses in Washington or targeting Washington residents.

Article Topics

Biometric Information Privacy Act (BIPA)  |  biometrics  |  data protection  |  legislation  |  privacy  |  time and attendance