Insight

Biometric Privacy: It’s Not Just an Illinois Issue

How BIPA Litigation May Impact Companies Outside of Illinois

Blue fingerprint that's reflective with black background
MM

Molly K. McGinley and Kenn Brotman

October 1, 2020 08:00 AM

Is it true that what happens in Illinois, stays in Illinois? Not so, at least when it comes to litigation under the Biometric Information Privacy Act (“BIPA”). In 2008, the Illinois General Assembly enacted “BIPA”, which provides a private right of action to individuals whose biometric data is collected by private entities that don’t comply with the informed consent, retention policies, and security mandates imposed under the law. Under BIPA, plaintiffs may seek statutory damages of $1,000 or $5,000 per violation, depending on whether the conduct is negligent or intentional or reckless, respectively. Fast forward a little more than a decade, and the number of putative class action lawsuits asserting BIPA claims approaches one thousand and cases are settling for millions of dollars (and even hundreds of millions of dollars). Businesses both inside and outside of Illinois should be paying attention. Why? Because there is litigation risk, not only for Illinois companies but also those beyond the borders of the Prairie State. As of the publication date, at least 29 BIPA lawsuits have proceeded in jurisdictions outside of Illinois.

Under Illinois law, a statute is without extraterritorial effect unless a clear intent appears from its express provisions. Nothing in the legislative history of BIPA suggests it was intended to apply outside the state. Despite the lack of intent by the Illinois General Assembly, plaintiffs throughout the country have filed class actions seeking certification of broad classes of individuals, regardless of where alleged BIPA violations have occurred, where the named defendants are located or where the alleged information has allegedly been collected or otherwise obtained.

In Monroy v. Shutterfly, a case filed in the Northern District of Illinois, the plaintiff claimed that someone in Chicago uploaded his photograph onto Shutterfly’s website. He alleged Shutterfly then used facial recognition software to scan the photo and create a detailed template of his face. Shutterfly moved to dismiss the case, asserting that the plaintiff’s lawsuit was an improper attempt to apply BIPA extraterritorially. Although the photo was uploaded from a device in Illinois, Monroy was a citizen and resident of Florida, and Shutterfly is a Delaware corporation headquartered in California. Nevertheless, the court held that these factors alone were insufficient to determine whether BIPA applies extraterritorially. It denied the motion to dismiss but allowed Shutterfly to raise the issue again if and when the facts revealed where the scan was collected and stored, and whether the claim can be said to have occurred primarily and substantially within Illinois. Thus, the case proceeded through fact discovery. Another judge in the Northern District of Illinois very recently reached the same conclusion in Vance, et al. v. Int’l Bus. Machines Corp.

In Neals v. PAR Technology Corp., another Northern District of Illinois case, the defendant filed a motion to dismiss arguing that the extraterritoriality doctrine barred the plaintiff’s claims because the relevant circumstances occurred outside of Illinois due to the fact that the defendant is located outside of Illinois. While granting the motion to dismiss, the court noted that the defendant’s physical location and the location of its servers were not determinative of BIPA’s application. However, because the plaintiff did not allege that she scanned her finger while in Illinois, the court could not determine that her fingerprint was collected in Illinois. Had she done so, then she would have alleged sufficient facts indicating that the circumstances relating to the purported transaction occurred primarily and substantially in Illinois; the transaction would involve an Illinois resident having her biometric information collected in Illinois by a private entity without the entity providing the requisite disclosure and obtaining the required consent in Illinois. Id. at 1091.

The Ninth Circuit Court of Appeals applied a similar analysis in Facebookv. Patel, stating:

[T]he parties’ dispute regarding extraterritoriality requires a decision as to where the essential elements of a BIPA violation take place . . . . Given the General Assembly’s finding that ‘[m]ajor national corporations have selected the City of Chicago and other locations in this State as pilot testing sites for new applications of biometric-facilitated financial transactions,’ . . . it is reasonable to infer that the General Assembly contemplated BIPA’s application to individuals who are located in Illinois, even if some relevant activities occur outside the state. . . If the violation of BIPA occurred when the plaintiffs used Facebook in Illinois, then the relevant events occurred ‘primarily and substantially’ in Illinois. . . . If the violation of BIPA occurred when Facebook’s servers created a face template, the district court can determine whether Illinois’s extraterritoriality doctrine precludes the application of BIPA.

Thus, while there seems to be little doubt that the location of the user is a major factor in determining whether BIPA would apply, the Ninth Circuit held it is not the only factor.

Going a step further, plaintiffs have been filing putative class action suits asserting BIPA claims outside of Illinois, while also asserting nationwide class claims for unjust enrichment and other non-Illinois state law theories, relying on BIPA violations to establish unlawful conduct by the defendant. For example, numerous lawsuits have been brought against Clearview AI in other states, including California, Illinois, New York, and Vermont. Clearview AI is a Delaware corporation with headquarters in New York. The company collects images on the internet and organizes them into a searchable database, which licensed users can comb through. Clearview AI hosts its data on servers located in New York and New Jersey. In one case filed in the Southern District of New York on May 4, 2020, residents of New York, California, and Illinois filed a putative class action complaint against Clearview AI on behalf of a nationwide class and separate sub-classes of residents of Illinois, California, and New York. In addition to a BIPA claim, the plaintiffs also brought claims under California Business and Professional Code Section 17200, California Common Law Right of Publicity, and California Constitutional Right to Privacy. The plaintiffs also alleged common law claims for intentional interference with contractual relations and unjust enrichment, using claimed BIPA violations as one of the predicates to assert that the defendant engaged in unlawful conduct.

Finally, other states, and even cities, have enacted legislation and ordinances similar to BIPA. Specifically, there are laws in Texas, Washington, California, New York, and Oregon that include informed consent and destruction requirements for biometric data. The city of Portland, Oregon, recently passed an ordinance prohibiting both city and private use of facial recognition technology. In addition, on August 4, 2020, Senators Jeff Merkley and Bernie Sanders proposed a federal bill—the National Biometric Information Privacy Act—which is modeled upon BIPA, including both a written consent requirement and a private right of action. With these significant developments, biometric privacy is no longer an Illinois-specific issue. Any businesses collecting, storing, or using biometric data should review relevant laws to avoid the substantial risks associated with biometric litigation.

Molly K. McGinley concentrates her practice at K&L Gates LLP in commercial litigation with a focus on complex litigation, including investment company litigation, securities litigation, and class action defense. Ms. McGinley is a leader of the firm’s biometric data compliance and defense affinity group and has advised several clients with respect to putative class action litigation and compliance under the Illinois Biometric Information Privacy Act.

Kenn Brotman focuses his practice at K&L Gates LLP on complex commercial litigation, including breach of warranty, breach of contract, and breach of fiduciary duty matters, as well as product liability, premises liability, general tort liability, and toxic tort. He is a member of the firm’s biometric data compliance and defense affinity group and has advised clients with respect to litigation and compliance under the Illinois Biometric Information Privacy Act.

Headline Image: ISTOCK.COM / DEM10

Related Articles

Biometric Points of Contention


by Gregory Sirico

The collection of individuals' biometric data via smartphones, facial recognition software and more—presents a challenge to consumers, lawyers and legislators.

Animated man with blue eyes and digital pixelations across his face

Evolving Marijuana Laws and the Workplace


by Tess P. Anglin

How can employers enforce statutes that differ from state to state?

Red image of a marijuana leaf

What Do Your Clients Want, Anyway?


by Emilia Levisay

Law Firm Strategies to Best Serve Clients.

Sticky notes on black chalk board that says quality, cost, and efficiency

Justice in the Age of COVID-19


by Todd A. Smith

Pandemic Creates Sea Change in the Delivery of Justice

Two paintings of two people's fingers pointed at each other and almost touching

Supreme Court Decision Will Play Important Role in Shaping Defendant Privacy Rights


by Gus Kostopoulos

The primary question will likely come down to whether or not cell phone data and location records are protected interests under the Fourth Amendment.

Defendant Privacy Rights

Recent Developments on Privacy and Data Protection in Brazil


by Ricardo Barretto Ferreira da Silva and Camila Taliberti Ribeiro da Silva

A change of paradigm is urgent and requires a robust legislation on personal data protection.

Privacy and Data Protection Brazil

Trending Articles

2025 Best Lawyers Awards Announced: Honoring Outstanding Legal Professionals Across the U.S.


by Jennifer Verta

Introducing the 31st edition of The Best Lawyers in America and the fifth edition of Best Lawyers: Ones to Watch in America.

Digital map of the United States illuminated by numerous bright lights

Unveiling the 2025 Best Lawyers Awards Canada: Celebrating Legal Excellence


by Jennifer Verta

Presenting the 19th edition of The Best Lawyers in Canada and the 4th edition of Best Lawyers: Ones to Watch in Canada.

Digital map of Canadathis on illuminated by numerous bright lights

Legal Distinction on Display: 15th Edition of The Best Lawyers in France™


by Best Lawyers

The industry’s best lawyers and firms working in France are revealed in the newly released, comprehensive the 15th Edition of The Best Lawyers in France™.

French flag in front of country's outline

Announcing the 13th Edition of Best Lawyers Rankings in the United Kingdom


by Best Lawyers

Best Lawyers is proud to announce the newest edition of legal rankings in the United Kingdom, marking the 13th consecutive edition of awards in the country.

British flag in front of country's outline

Announcing the 16th Edition of the Best Lawyers in Germany Rankings


by Best Lawyers

Best Lawyers announces the 16th edition of The Best Lawyers in Germany™, featuring a unique set of rankings that highlights Germany's top legal talent.

German flag in front of country's outline

Prop 36 California 2024: California’s Path to Stricter Sentencing and Criminal Justice Reform


by Jennifer Verta

Explore how Prop 36 could shape California's sentencing laws and justice reform.

Illustrated Hands Breaking Chains Against a Bright Red Background

Celebrating Excellence in Law: 11th Edition of Best Lawyers in Italy™


by Best Lawyers

Best Lawyers announces the 11th edition of The Best Lawyers in Italy™, which features an elite list of awards showcasing Italy's current legal talent.

Italian flag in front of country's outline

Combating Nuclear Verdicts: Empirically Supported Strategies to Deflate the Effects of Anchoring Bias


by Sloan L. Abernathy

Sometimes a verdict can be the difference between amicability and nuclear level developments. But what is anchoring bias and how can strategy combat this?

Lawyer speaking in courtroom with crowd and judge in the foreground

Things to Do Before a Car Accident Happens to You


by Ellie Shaffer

In a car accident, certain things are beyond the point of no return, while some are well within an individual's control. Here's how to stay legally prepared.

Car dashcam recording street ahead

The Push and Pitfalls of New York’s Attempt to Expand Wrongful Death Recovery


by Elizabeth M. Midgley and V. Christopher Potenza

The New York State Legislature recently went about updating certain wrongful death provisions and how they can be carried out in the future. Here's the latest.

Red tape blocking off a section of street

Tampa Appeals Court ‘Sends Clear Message,” Ensuring School Tax Referendum Stays on Ballot


by Gregory Sirico

Hillsborough County's tax referendum is back on the 2024 ballot, promising $177 million for schools and empowering residents to decide the future of education.

Graduation cap in air surrounded by pencils and money

Find the Best Lawyers for Your Needs


by Jennifer Verta

Discover how Best Lawyers simplifies the attorney search process.

A focused woman with dark hair wearing a green top and beige blazer, working on a tablet in a dimly

Key Developments and Trends in U.S. Commercial Litigation


by Justin Smulison

Whether it's multibillion-dollar water cleanliness verdicts or college athletes vying for the right to compensation, the state of litigation remains strong.

Basketball sits in front of stacks of money

Is Premises Liability the Same as Negligence?


by Jeremy Wilson and Taylor Rodney Marks

In today's age, we are always on the move, often inhabiting spaces we don't own. But what happens when someone else's property injures you or someone you know?

A pair of silhouetted legs falling down a hole with yellow background

Woman on a Mission


by Rebecca Blackwell

Baker Botts partner and intellectual property chair Christa Brown-Sanford discusses how she juggles work, personal life, being a mentor and leadership duties.

Woman in green dress crossing her arms and posing for headshot

Best Lawyers Celebrates Women in the Law: Ninth Edition


by Alliccia Odeyemi

Released in both print and digital form, Best Lawyers Ninth Edition of Women in the Law features stories of inspiring leadership and timely legal issues.

Lawyer in green dress stands with hands on table and cityscape in background