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Onfido appeals arbitration block in biometric privacy suit, claims filed against proctoring software


biometric facial recognition

Onfido has asked the Seventh Circuit Court of Appeals to intervene in a lawsuit against it alleging biometric data privacy regulation violations, on grounds that the decision barring it from taking the claims to arbitration was incorrectly arrived at, Law360 reports.

A federal judge ruled in January that the arbitration clause agreed to by users of online marketplace OfferUp makes no mention of third-party providers, and therefore the company must face claims against it under Illinois’ Biometric Information Privacy Act (BIPA) in court. Onfido has now countered with a Seventh Circuit filing that both Illinois and Washington State law allow non-signatories to benefit from arbitration agreements.

Allowing the suit to move forward in court would contravene the binding arbitration agreement in the OfferUp terms of service and its contracts indemnification and liability provisions, Onfido argues. The TrueYou feature which performed the biometric data collection at issue was accessed through OfferUp, and is explicitly covered by its terms of service, according to the filing.

A BIPA claim against Amazon was recently sent to arbitration, and Facebook is seeking the same for a suit against Instagram.

DePaul online proctoring system draws lawsuit

An online proctoring tool used by DePaul University is violating students’ biometric privacy rights under BIPA, according to a potential class action suit reported in another Law360 article.

The suit, filed in State Court, claims the software captures face biometric data, keystroke patterns (behavioral biometrics), tracks gaze and records audio, which adds up to surreptitious surveillance, according to the student plaintiffs, who represent a potential class of thousands.

The system used by DePaul is called Respondus Monitor, and the plaintiffs claim it violates BIPA by collecting biometric data without explicit consent, and by failing to publish a data retention and destruction policy.

Filing documents also indicate that students agree to recognize the state court system as the appropriate jurisdiction on signing up for classes, making it the venue the suit should be heard in.

Biometric proctoring software has prompted a series of criticisms, official complaints and lawsuits in various countries over the past year.

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