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2022 could still be a big year for BIPA cases. Watch these four

2022 could still be a big year for BIPA cases. Watch these four

If no more Illinois biometric lawsuits were filed before 2023 – and that would be a poor bet – this could still be an important year for privacy in the state.

Below are a number of ongoing cases resulting from Illinois’ groundbreaking (or controversial, depending on your perspective) Biometric Information Privacy Act.

Two of the most consequential cases involve what can be admitted before a judge. They await decisions by the state Supreme Court that could come this year.

A third, involving commercial truckers whose faces are scanned and stored by an in-cab facial recognition app, has recently progressed.

The fourth is interesting mostly for how the defendant’s attorneys are seeking to defend their client, a private research university.

The first two made the list of Illinois cases to watch during the second half, compiled by trade publication Law360. Neither are guaranteed to be decided this year, which leaves multiple relevant lower-court decisions in limbo.

Justices in one battle are weighing whether plaintiffs can sue for each time they were required by their employer to submit biometric scanning without getting their consent or giving them critical information about data use.

Cothron v. White Castle System, Inc. (case 20-3202) recognizes that each scan has the potential to upend an employee’s life if it is misused. It also recognizes that a company could be driven to bankruptcy if it can be held responsible for each instance.

In Tims v. Black Horse Carriers (case 127801), the Justices are deciding on a one- or five-year statute of limitations.

While some business owners paid too little attention to the repercussions of deploying fingerprint and face biometrics, many have since rushed to make sure they comply with BIPA. Some number of those firms would be saved expensive litigation if the filing limit were one year.

Action on another biometrics case, this one not before the Supreme Court, was just logged this week.

The U.S. District Court judge in northern Illinois hearing David Karling et al. v. Samsara (case 1:22-cv-00295) denied a motion to dismiss.

Dash biometrics systems vendor Samsara had argued that applying BIPA to truckers driving in or through Illinois would undermine federal regulation designed to ensure safety and verify drivers’ identity. Both arguments were rejected.

The judge wants more information before deciding on a third position, that BIPA violates the implied intent of the Constitution’s Commerce Clause.

Last, the Illinois Institute of Technology has said it is not regulated by BIPA because it is not a school. It is a financial institution because it administers student loans and makes it immune to the law when staff deploy problematic facial-recognition proctoring apps.

Unconvinced by the argument, a Chicago U.S. District judge told IIT to prove that it is legally a financial institution, according to the Cook County Record.

Proctoring firm Respondus Monitor was used in 2020 in an effort to minimize cheating during remote testing.

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