Page 3 - Litigation

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Litigation | MONDAY, FEBRUARY 22, 2016 | S3
As described above, BIPA and CUBI each set forth a seemingly specific definition of a biometric identifier. Moreover, based on the language of these two statutes, neither a photograph nor information derived from a photograph should constitute biometric information. Yet, as will be discussed further below, judicial interpretation of this statu- tory language has left the door open for a plaintiff to allege a BIPA violation based on the purported unauthorized collection of biometric information derived from a photograph.
Proposed Statutes in New York, Alaska, and California, Offer Different Definitions of Biometric Information. Further increasing the uncertainty surrounding the definition of “biometric information,” proposed biometric privacy statutes drafted by states other than Illinois and Texas offer varying definitions.
For example, New York’s proposed Data Security Act defines “biometric information” as “data generated by automatic measure- ments of an individual’s physical character- istics, which are used ... to authenticate the individual’s identity.”7 Under this definition, it is unclear which “physical characteristics of an individual” will constitute biometric identifiers. This definition also conflicts with BIPA, which excludes certain physical characteristics from its definition of biometric information.
Alaska’s proposed biometric privacy stat- ute, “An Act Relating to Biometric Informa-
tion,”8 further clouds the picture. Alaska’s proposal, like BIPA and CUBI, defines bio- metric data to include fingerprints and iris scans, which Alaska considers to be physical characteristics.9
California’s proposed amendment to its existing data privacy statute only raises fur- ther questions. A state known to be at the forefront of digital privacy laws with strong constitutional privacy rights, California is seemingly behind in the area of biometric privacy; California’s proposed amendment is currently dormant.10
California’s proposed amendment nonethe- less defines broadly “biometric information” as “data generated by automatic measure- ments of an individual’s biological character- istics that are used ... to authenticate an indi- vidual’s identity, such as a fingerprint, voice print, eye retinas or irises, or other unique biological characteristic.”11 This definition extends biometric information beyond the relatively limiting definitions of BIPA and CUBI to include unique biological characteristics and data generated by automatic measure- ments of them.
But by expanding the scope of biomet- ric information (and hence expanding the scope of biometric protection), California’s proposed amendment creates more confu- sion. It remains undefined what constitutes a unique biological characteristic, and whether “biological characteristics” under California’s proposed amendment are synonymous with
“physical characteristics” under New York’s proposed law. The answers to these questions may never be known if California’s proposed amendment remains dormant.
Existing and proposed statutes cannot define uniformly and unambiguously bio- metric information. (See table on page S11).
• Implemented and Proposed Biomet- ric Privacy Statutes Impose High Statutory Penalties for Non-Compliance and Leave Companies Vulnerable to Suit.
The varying, conflicting and often ambigu- ous definitions of “biometric information” in existing and proposed biometric statutes cre- ate significant risk for companies; as a result, these companies may incur significant civil penalties for alleged noncompliance with the various statutes at play.
BIPA authorizes statutory penalties rang- ing from $1,000 for a negligent violation, to $5,000 for an intentional violation.12 CUBI imposes civil penalties of up to $25,000 per violation.13 By comparison, the highly litigated federal Telephone Consumer Protection Act authorizes only a $500 per violation penalty.14
New York’s proposed statute empowers the New York Attorney General to impose civil penalties of $250 for each person, up to a maximum of $10 million. For knowing and reckless violations, penalties can escalate to $1,000 for each person, up to a maximum of $50 million.15 Alaska’s proposed statute levies a $5,000 penalty under certain conditions.16 California’s proposed amendment does not
impose a civil penalty or allow for liquidated damages.17
The magnitude of these statutory penalties may be tempered by the Supreme Court’s forthcoming ruling in Spokeo v. Robins,18 where the court will decide whether a plaintiff has standing to assert only a statutory viola- tion where no actual “injury-in-fact” occurred. Although the court will address that issue in connection with a suit brought under the Fair Credit Reporting Act, if the court holds that standing does require an actual injury-in- fact, suits under biometric statutes may slow and help shield companies from the cost of non-compliance.
• Judicial Interpretation of Biometric Information Under BIPA.
Given the current state of biometric pri- vacy law and the steep civil penalties that are presently available, it is not surprising that plaintiffs have asserted statutory violations in the social media context, where violations can multiply quickly and corresponding civil penalties can escalate to the millions.
Perhaps it is because BIPA was the first biometric privacy statute, or the hotbed of plaintiffs’ attorneys in Chicago that have been known to challenge other privacy suits, but to date, the only suits to have alleged a private entity’s violation of a biometric privacy stat- ute are those asserted against BIPA.
In 2015, three class action lawsuits alleg- ing BIPA violations were filed against Face- book.19 These suits, which have » Page S11
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