IL Supreme Court takes up Six Flags fingerprint scanning case, to answer question: Who can sue under BIPA?

By Kory Oswald | Jun 14, 2018

SPRINGFIELD - With class action lawsuits piling up against employers and other businesses, the Illinois Supreme Court will soon step in to perhaps answer the question of who may sue under a state privacy law when an employer or merchant scans their fingerprints or other biometric identifiers to verify their identity for theme park admission, participation in various programs or to track hours worked, among other purposes.

At the end of May, the state's high court announced it would hear arguments in an appeal from a mother who claims her son's rights under the Illinois law, known as the Biometric Information Privacy Act (BIPA), were violated by theme park operator Six Flags, when it required the young man to scan his fingerprints to verify his identity in conjunction with his Six Flags season pass card. 

She claimed Six Flags broke the BIPA law when it scanned his fingerprints without notice and consent, as required by the statute. Attorneys for Six Flags argued that the plaintiff cannot sue because neither the son nor his mother was harmed by the scan.

A Lake County judge had agreed to let the woman continue her suit under BIPA. But in December 2017, a state appeals court ruled in favor of Six Flags, prompting the state Supreme Court to take up the question.

P. Russell Perdew   Locke Lord

P. Russell Perdew, an attorney at Locke Lord LLP, said the mother made no claim of identity theft, only that the park did not give notice or ask her for consent.

"The statute only lets a ‘person aggrieved’ by a violation sue, so the issue was whether the plaintiff had to show an injury to be allowed to sue,” Perdew told the Cook County Record

The Supreme Court case will likely have significant repercussions for lawsuits under BIPA, Perdew said, as the case could hamper claims of technical violations, or possibly create many more putative class actions in the state. In recent months, plaintiffs' lawyers have brought dozens of lawsuits against employers, in particular, accusing them of violating employees' rights under BIPA when requiring them to consent to scans of their fingerprints or other biometric identifiers for use with employee punch clocks to track their hours worked.

Perdew said the case could also affect other large legal actions,  like one pending against Facebook, currently in California federal court, over allegations the social media giant's photo tagging technology violates BIPA. 

“At least one Illinois court has found that transmitting the biometric information to a third party is sufficient injury to allow a plaintiff to sue,” Perdew said. "The impact on the Facebook litigation is unclear.”

The plaintiff in the Facebook case claims they were unaware that the social media giant was collecting biometric information, which consisted of facial scans from digital photographs, Perdew said.

Perdew said he "(expects) the (Illinois) Supreme Court is aware of all the litigation under the statute and wants to clarify the critical issue of who can sue under the statute sooner rather than later,” Perdew said. “If the Supreme Court affirms the dismissal, that should substantially limit existing and future Illinois cases to situations where the plaintiff suffered some injury or perhaps where the plaintiff was unaware that their biometric information was being taken.”

The Illinois Supreme Court might hear arguments in this case later this year, with a decision coming later or early next year, Perdew said.

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