Cook County Record

Monday, December 9, 2019

Attorney says Second Circuit decision in Illinois biometric data case provides roadmap to deal with future cases

By John Sammon | Dec 15, 2017

Springfield capitol dome

Editor's note: This article has been revised from an earlier version to clarify comments made by attorney Appenteng to the Cook County Record.

CHICAGO — A Chicago-area attorney is advising employers that they should take more steps to make sure they are protected from lawsuits alleging the improper storage of fingerprints and other so-called biometric identifying information gathered from employees.

And, he said, the attorneys representing them can look to a recent decision from a New York federal appeals court for guidance on one successful avenue of defense.

In 2008, the Illinois General Assembly passed the Biometric Information Privacy Act (BIPA), the original intent of which was to protect people against identity theft by safeguarding their rights to control their biometric identifiers, or their unique physical characteristics, including facial scans and retina and iris scans.

New technology can also use those biometrics - typically, fingerprints - to record employee work hours, while reducing fraud.

The new and expanding identification technology, however, recently has stood at the center of a surge of lawsuits in Illinois among people claiming their rights were violated under BIPA, focusing on allegations employers did not give employees written notice that biometric data was being taken, explain why it was being taken, how it would be stored and for how long.

In November 2017, the U.S. Court of Appeals for the Second Circuit in New York upheld a district court’s dismissal of a case in which two Illinois residents sued a video company, Take-Two Interactive Software Inc., under the Illinois BIPA law. Images of the two residents had been created to be used in a basketball videogame. Both players had agreed to the game's conditions that contained a notice about the recording of their facial features.

Nevertheless, they sued, contending the company had failed to provide them with written notice, protect their privacy and had stored their information indefinitely.

The federal court rejected the argument, noting the two individuals had not suffered harm and knew their likenesses would be recorded after giving their consent.

“The lower court pointed out the plaintiffs did receive some form of notice,” said Kwabena Appenteng, an attorney at Littler Mendelson P.C. “The plaintiffs were also aware that their biometric information was being scanned.”

Appenteng said employers would be best served to secure written consent from employees and be sure to disseminate a policy that meets the minimum requirements of the BIPA law before collecting fingerprint scans or other biometrics.  

But he said the Second Circuit decision provides a roadmap to deal with future cases. 

“The Second Circuit Court decision does provide some help for employers being sued to make arguments countering the allegations against them,” Appenteng said.

Appenteng also said employers should look to see if any other forms of prior notice were given or documents that conveyed warnings that biometric information was being recorded in the event of a lawsuit.         

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Organizations in this Story

Illinois General AssemblyLittler Mendelson P.C. U.S. Second Circuit Court of Appeals