NEW YORK — The U.S. Court of Appeals for the Second Circuit will consider the reach and scope of the Illinois Biometrics Information Privacy Act (BIPA), which was designed to protect Illinois residents' biometric data from abuse, but which many plaintiff attorneys have now used to target many different businesses with class action lawsuits alleging technical violations.

The case involves an alleged violation of the Illinois BIPA, but it has wound up in a New York federal appeals court for review after two video gamers in Illinois sued a New York-basd video gaming company, Take-Two Interactive Software, claiming their privacy was violated. A federal judge in New York, however, decided the case lacked merit and the plaintiffs had not suffered damages, prompting an appeal to the Second Circuit.

P. Russell Perdew, partner, Locke Lord, Chicago
P. Russell Perdew, partner, Locke Lord, Chicago | Locke Lord LLP

But whatever the Second Circuit decides could have far-reaching consequences on how the privacy law is handled and enforced.    

“The Second Circuit Court is a very respected court, so even though its decision won’t be binding on Illinois courts, it will carry a lot of weight,” Russell Perdew, a Chicago-based attorney at Locke Lord, told the Cook County Record.

Biometrics information is data obtained from technology that can identify people using their unique physical or behavioral characteristics. Identification methods have greatly expanded in recent years to include retina scans, facial features, the shape of the ear, voice pitch and even hand gestures. Biometrics are increasingly being used by corporate and public security systems, consumer electronics and point-of-sale retail outlets.

Supporters of the BIPA law said it was intended to protect Illinois residents' biometric data from abuses and illegal snooping. The law includes fines of up to $5,000 for violations. The law requires companies, among other things, to inform consumers and employees that biometric identifiers are being collected and stored, and obtain a written release giving them permission to use the data. The result has been a rash of lawsuits in Illinois.

The “Take-Two Case” involves plaintiffs Ricardo Vigil and Vanessa Vigil, who sued the video game publisher, Take-Two Interactive Software, alleging BIPA violations because its basketball game scanned their faces so they could be used as an avatar in the game, according to a report by Tom's Hardware.

“In other words, once your face was scanned, you got to use a basketball player in the game that looked like you,” Perdew said. “The plaintiffs in this case claimed the defendant did not make the disclosure or obtain permission the BIPA requires.”

A New York district court in January decided that Take-Two did not violate privacy laws because the two gaming players gave the company their consent to capture their facial profiles and failed to establish harm.

Perdew said the case wound up in a federal appeals court in New York because even though the basketball video game was played in Illinois, the defendant’s headquarters was in New York, and the plaintiffs were allowed to sue the company there.

“I suspect the plaintiff’s attorney thought the Second Circuit would be better for them because those courts have been willing to let plaintiffs without an obvious injury sue for statutory violations more than the Seventh Circuit in Illinois,” Perdew said.

Perdew explained the Second Circuit Court could decide whether a plaintiff can sue a defendant who violates the BIPA, but doesn’t cause a concrete injury.

“BIPA violations often cause no damage,” he said. “The (Second Circuit) decision could dramatically limit how many BIPA cases are filed and whether the existing cases continue.”

He added defendants should watch to see if the Second Circuit Court requires plaintiffs to be injured in order to sue. If such a requirement is made, defendants will want to raise that argument when defending their cases.

Perdew said the New York hearing could also bear on the growing number of lawsuits targeting employers who use fingerprint scans to track the work hours of employees.

“An injury requirement will give defendants a powerful new argument to raise in defending BIPA cases,” he said.

As different circuit courts weigh in on the issue, a “split” judgement between them on how best to handle the issue is possible. Perdew added that consideration by the U.S. Supreme Court is also possible.

“Guessing about that now would be very speculative,” he said.          

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