The owners of Hawthorne Race Course have improperly used a facial recognition security and surveillance system to scan the faces of everyone who visits its horse racing track, claims a new class action lawsuit under Illinois’ biometrics privacy law.
On Dec. 17, attorneys with the firm of McGuire Law P.C., of Chicago, filed suit in Cook County Circuit Court against Hawthorne Race Course Inc.
The lawsuit was filed on behalf of named plaintiff Arviol Mala, identified in the complaint only as an Illinois resident who visited the Hawthorne track in suburban Stickney in late November.
Timothy Kingsbury
| Superlawyers.com
According to the lawsuit, Hawthorne operates a facial recognition system, which is operated by third-party security firm Edot LLC, which does business as DigiTek Security.
According to the complaint, the system captures footage of every visitor to Hawthorne’s track, at the time they enter the facility, using cameras mounted on the ceiling. The system then scans visitors’ faces, based on their so-called facial geometry, which is considered a unique biometric identifier.
The system then allegedly compares those facial scans against a database curated by Hawthorne, to allow track operators and DigiTek to weed out “unwanted visitors” to the track.
The lawsuit does not take aim at Hawthorne for operating such a system, directly.
Rather, the complaint asserts Hawthorne has improperly scanned the faces of visitors, like Mala, without first securing written authorization from those visitors to scan their faces, and share the digital scan data with DigiTek or anyone else for the facial comparisons.
Likewise, the complaint said Hawthorne did not provide notices to visitors about the scans, telling them why their faces may be scanned, and what would ultimately happen to those facial scan images, including how the scans would ultimately be destroyed.
The plaintiffs claim Hawthorne’s alleged failure to provide notice and obtain consent before conducting the facial scans and sharing them with DigiTek for the database comparison, violates provisions of the Illinois Biometric Privacy Act.
The BIPA law has been used by a growing cadre of plaintiffs’ law firms to press potentially massive class actions against a host of businesses, of wide range of types and sizes, either based in Illinois or operating in the state in some fashion.
The vast bulk of the thousands of lawsuits filed under the law since 2015 have primarily targeted employers, over claims the companies have improperly required employees to scan fingerprints or other biometric identifier when punching the clock at work, or when accessing secure areas in their workplace.
However, in more recent months, a growing number of these class actions have taken aim at businesses using facial recognition programs to either improve security and surveillance on their premises, or to provide online services, such as a dating services, and online products, like helping consumers select cosmetics or eyeglasses from their home.
No matter the reason for the lawsuit, businesses hit with such actions could face potentially massive payouts.
The law allows plaintiffs to demand damages of $1,000-$5,000 per violation. And the law has been interpreted in courts to define individual violations as each time a biometric scan is conducted without first satisfying the law’s notice and consent provisions.
The lawsuit against Hawthorne seeks to expand the action to include everyone who visited Hawthorne Inc.’s track “within the applicable limitations period.” Typically, BIPA lawsuit class periods date back about five years.
According to reports published by the Illinois Racing Board, which regulates operations at Illinois horse racing tracks, Hawthorne Race Course Inc. logged total live attendance of 47,609 in 2019, the most recent report posted for a full season of racing.
Based on those figures, Hawthorne’s potential liability under the lawsuit could exceed $200 million, should the case go to trial.
While case law for such BIPA lawsuits continues to be written and shift, courts to this point have not yet limited in any significant way the ability of plaintiffs to claim such potentially crippling damages. Faced with such risks, an ever-growing number of businesses targeted by such lawsuits have opted to settle. Settlements have typically ranged from hundreds of thousands of dollars to about $25 million.
Facebook, however, agreed to pay more than $600 million to settle BIPA claims over that company’s use of so-called face tagging algorithms on their social media platform. Facebook had faced potential damages well into the billions of dollars.
Plaintiffs in the Hawthorne Race Course lawsuit are represented by attorneys Timothy P. Kingsbury and Colin P. Buscarini, of McGuire Law.