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Biometric privacy lawsuits make “judicial hellholes” and Facebook Supreme Court hearing top concern

Biometric privacy lawsuits make “judicial hellholes” and Facebook Supreme Court hearing top concern

The Biometric Information Privacy Act (BIPA) of Illinois continues to make waves, with several cases winding their way through the courts and various stakeholder groups critiquing and observing the various proceedings.

An editorial in The National Law Review suggests that BIPA, as interpreted by the courts, may be sacrificing security for unreasonable fear of an unlikely dystopia. While acknowledging the rationality of Illinois and other states attempting to regulate the use of biometrics, the article penned by Theodore F. Claypoole of Womble Bond Dickinson points out that fears about biometric data theft and spoofing may be rooted in the technology’s past, rather than its present.

“The field of biometrics may scare some people, but it is a natural outgrowth of how humans have always told each other apart,” he argues. “If limit its use for critical security, we are likely to suffer from the decision.”

The acceptance of BIPA plaintiff’s arguments for so-called “no-injury class action lawsuits” has contributed to three Illinois counties being labelled “judicial hellholes” by the American Tort Reform Association (ATRA), local outlet WJBC reports.

Cook, Madison, and St. Clair Counties are named among the top ten jurisdictions for actions such as “frivolous lawsuits concerning the Biometric Information Privacy Act to proceed.” ATRA President Tiger Joyce said the legislature has pursued an agenda of expanding liability in 2019. Illinois Trial Lawyers Association President Antonio M. Romanucci called the report “deceptively titled,” and part of an “ongoing campaign to deny access to the court system that our tax dollars fund.”

“ATRA’s annual publicity stunt demeans the U.S. Constitution and attacks citizens’ Seventh Amendment right to trial by jury,” he continued.

The number of civil lawsuits in the state has declined by 47 percent since 2010, according to Romanucci. Joyce claims the total cost of judicial hellholes includes more than 81,000 jobs and $5 billion in personal income in 2018.

Bloomberg Law Senior Legal Editor Daniel R. Stoller tabs the approaching Supreme Court decision in Facebook’s BIPA case as a top lawsuit to watch in the year ahead. The article quotes privacy and litigation partner Amanda Fitzsimmons of DLA Piper as saying 2020 “is expected to be a big year in federal privacy and data breach litigation.”

She also suggests that the high potential damages in Facebook’s case may make the top court more likely to intervene. If it does not, tech companies may pursue federal district and appeals court rulings on standing in 2020, academics and privacy attorneys say. Business may also try to move litigation out of the Northern District of California, for example, to seek more sympathetic venues.

Matthew T. Hays of Dykema Gossett PLLC reviews the defense strategies of technology defendants in BIPA cases for Lexology, and notes that the interpretation of the law in the courts has tended to maximize its scope, even as it relates to technologies and arguments that did not exist when it was passed in 2008.

Google argument criticized as cases move forward

An Illinois consumers’ group has told a state court judge not to accept Google’s arguments against certain allegations in a class, which the group says have been cherry-picked, while ignoring the others, Law360 reports.

Google claims voice recordings it makes for its Google Assistant software are not considered biometric identifiers under BIPA, but the group replied that the claim ignores specific allegations that voice biometric identifiers are also collected by the tech giant.

The Illinois Workers’ Compensation Act’s (IWCA’s) exclusive remedy provision does not pre-empt BIPA, and therefore an allegation that Power Solutions International violated the usual informed consent requirements for its fingerprint timekeeping solution is proper, a Northern District of Illinois judge has ruled. Judge Jorge L. Alonso rejected the company’s bid to dismiss an employee’s suit, according to Bloomberg Law.

Bloomberg Law also reports that the disclosure of fingerprint data with a payroll vendor is not sufficient grounds for federal standing, a judge has ruled in the Northern District of Illinois. Judge Edmond E. Chang wrote that the disclosure does not represent a sufficient risk of future harm to grant standing, dismissing the case back to Will County Circuit Court, its original venue.

Vimeo says any complaints about its Magisto app are only eligible for arbitration, and only on a case by case basis, the company says in a filing with the Northern District of Illinois, MediaPost reports. Magisto was purchased by Vimeo in April, and allegedly uses facial biometrics without meeting BIPA’s requirements, but Vimeo says it rather uses machine learning for object identification. The article points out that arbitrating individually can be prohibitively expensive, compared to pursuing collective damages in court.

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