A new class action lawsuit has accused automaker Subaru of illegally scanning the faces of drivers in Illinois when the cars deploy the company’s DriverFocus distracted driving crash prevention system, allegedly in violation of Illinois’ biometrics privacy law.
On Nov. 29, attorneys Daniel O. Herrera and Nickolas J. Hagman, of the firm of Cafferty Clobes Meriwether & Sprengel, of Chicago, filed suit in Cook County Circuit Court in Chicago against Subaru.
The complaint focuses on Subaru’s use of its DriverFocus system in certain vehicles made by Subaru. These include the 2019-2022 Subaru Forester, 2020-2022 Subaru Outback and the 2020-2022 Subaru Legacy.
According to the lawsuit, the DriverFocus system uses a near-infrared camera to monitor the driver’s face and eyes to ensure the driver is paying attention to the road. The system will then “alert the driver with either a visual warning on the vehicle’s display system or audible warnings, or both,” should it determine the driver is distracted or drowsy.
The system is capable of recognizing the faces of up to five registered drivers, according to the complaint, allowing it to adjust various settings in the car to automatically suit the driver’s pre-set preferences.
To accomplish these comfort and crash prevention goals, the complaint says, the DriverFocus system stores drivers’ facial geometry and retina/iris scans on an onboard computer. That computer is, in turn, allegedly accessible through Subaru’s Starlink system, which Subaru can use to collect and access data about the vehicle and the driver.
According to the complaint, that data is “automatically retrieved, recorded, and transmitted to Subaru.”
The complaint asserts this data collection and transmission violates the Illinois Biometric Information Privacy Act, because Subaru scans drivers’ faces and eyes, and collects and transmits that information, without first securing written permission from the drivers or without supplying drivers with written notices concerning why the data is being collected, and how their biometric identifying data will be used, stored, shared and ultimately destroyed.
According to the complaint, Giron has owned a 2020 Subaru Outback since early 2020, and claims at no point since then has Subaru attempted to notify her of the face scans that allegedly occur each time she started her car, allegedly in violation of the BIPA law.
According to the complaint, Giron’s attorneys sent a letter to Subaru in April 2021, allegedly in an attempt to resolve her BIPA-related claims. According to the complaint, those claims remain unresolved.
The BIPA law has been used by a growing number of plaintiffs’ attorneys to launch potentially massive class action lawsuits against businesses of all types and sizes operating in Illinois since 2015.
The bulk of such lawsuits have, to date, targeted employers, who may require workers to scan their fingerprints or other biometric identifier to verify their identity when punching the clock at work, or when accessing secure areas in a workplace.
However, many of the lawsuits have also taken aim at big tech companies, including Facebook and Google, and at various other companies that use some form of facial recognition technology in their overall products or as part of a consumer marketing campaign.
A number of recent lawsuits, for instance, have been filed against cosmetics or eyewear companies that use virtual or augmented reality technology to allow consumers to virtually try on makeup or eyeglasses before purchasing them online.
The lawsuit against Subaru marks the first time the automaker has been sued for its driver safety and crash avoidance systems.
The lawsuit seeks damages of $1,000-$5,000 per violation, as allowed under the BIPA law. Individual violations have been defined in other cases as each time a company’s technology scans a biometric identifier. In this case, that could mean each time a resident of Illinois started their 2020-2022 Subaru vehicle, and had their face scanned by the DriverFocus system.
The complaint seeks to expand the action to include any Illinois resident who is a current or former owner of a 2020-2022 model Subaru Outback, Forester or Legacy model vehicle.
The complaint estimates this could include thousands of Illinois residents, placing many millions of dollars potentially at stake in this case.
To date, typical BIPA settlements have netted hundreds of dollars for most class members, while attorneys typically land fees worth hundreds of thousands or even millions of dollars.