Pharmacy, Apple still on the BIPA hook. Car renter Enterprises settling

A proposed biometric data privacy class action against CVS Pharmacy won a second life this week. It had been dismissed, was revived and has survived a second bid for dismissal, according to law trade publication Law360.

Apple, despite having had some success in court, is finding its persistence is not helping it in a state of Illinois biometrics case. And another vendor, Enterprise car leasing, is opting out if its fight via a settlement.

The case (22cv03318) is about how CVS takes pictures of customers for passports. Company executives say the only AI software used looks to see if, in a picture, a customer’s eyes are closed, or they are smiling.

Those are not identifying traits by most definitions. Yet the digital images collected and stored by CVS systems inarguably contain biometric information that could be used to identify someone. That is, the biometrics can be linked to the demographic and contact data that passport photo buyers have to supply.

The putative class is comprised of Illinois residents. They are protected against misuse of their data by Illinois’ Biometric Information Privacy Act, which requires businesses to get express consent before collection of digital biometric data. It also requires businesses to explain how the data is to be managed.

As in so many cases to date, the plaintiffs argue that they have been wronged under BIPA.

Lead plaintiffs Denise Daichendt and Ada “June” Odell initially ran into a brick wall with their case. An Illinois federal judge originally dismissed their case because they had not shown that CVS could identify them based on the features recorded.

They refiled saying that combining the biometric data with the demographic data could allow them to be identified, making the service a BIPA violation. If the court agrees, it could set up more suits against businesses that use face scans without identifying people, like virtual try-on services.

Meanwhile, Apple is 0-3 in its attempt to find a more sympathetic venue for a BIPA case (3:22-CV-2575) that it faces. Apple wants to move the case from a state circuit court to a federal court.

The motion has been denied for the third time, according to trade publication Bloomberg Law.

Enterprise appears to have seen the futility of its defense against BIPA allegations. Law360 has reported that executives are preparing for a settlement of about $505,000.

Employees numbering in excess of 700 have alleged in a lawsuit that Enterprise required them to submit to fingerprint scanning when starting and ending work. The company did not, however, get their consent, according to the court documents (1:20-cv-03200). A final hearing must be held before this deal is done.

Selfie biometrics vendor Onfido made the same decision last month.

Article Topics

biometric data  |  Biometric Information Privacy Act (BIPA)  |  biometrics  |  data privacy  |  face biometrics  |  lawsuits