Facebook files biometric privacy suit appeal with Federal Supreme Court as Walmart tries novel defence

Facebook has petitioned the U.S. Supreme Court over the issue of “standing” in the class-action suit against it under Illinois’ Biometric Information Privacy Act (BIPA), MediaPost reports.

The petition has been expected since the company filed notice of its intention in October with the state’s Ninth Circuit, which deferred to an earlier state supreme court decision on the criteria for standing under BIPA.

“Although plaintiffs claim that their privacy interests have been violated, they have never alleged — much less shown — that they would have done anything differently, or that their circumstances would have changed in any way, if they had received the kind of notice and consent they alleged that BIPA requires, rather than the disclosures that Facebook actually provided to them,” Facebook writes to the court. The company also says one of the plaintiffs has testified to liking the Face Tagging feature and continuing to use it, even while suing the company for its alleged violations of the statute’s informed consent rules.

The Ninth Circuit Decision itself was on appeal of an earlier decision.

Walmart argues biometrics not stored

Another in a seemingly-endless parade of lawsuits alleging informed consent violations of BIPA with employee tracking systems, this one against Walmart, is marked by a novel defence, according to Law360.

The retail giant claims its system does not process or store the handprints it uses to record possession of cash drawers. The informed consent rules do not apply therefore to the palm-scan system, Walmart says.

Shutterfly arbitration attempt alleged improper

Plaintiffs against Shutterfly have told the court an attempt to bind users to arbitration over biometric privacy by mass-emailing its users new terms and conditions of service is improper, because it neglected to disclose the litigation pending against the company, Law360 reports in a separate article.

The arbitration notice was allegedly sent three months after the lawsuit was filed, which frees users from the requirement to individually arbitrate their claims, according to plaintiffs’ argument.

Plasma donation company sued

A blood donor is suing Octapharma Plasma Inc. for allegedly failing to satisfy the informed consent requirements of BIPA when it made her scan her fingerprint at each donation, Bloomberg Law reports.

The company allegedly did not tell plaintiff Mary Crumpton that it had a biometric data policy, and did not give her an opportunity to provide informed written consent.

As a case of voluntary donation, rather than a mandatory work procedure or a background process in a digital service, the suit is somewhat unique, but BIPA does not grant special status to voluntary practices.

Crumpton is represented by Edelson PC, which also represented the plaintiff in the State Supreme Court’s ruling on standing.

Article Topics

biometric data  |  Biometric Information Privacy Act (BIPA)  |  biometrics  |  data collection  |  Facebook  |  privacy