A federal judge once again put the brakes on BNSF’s efforts to derail a biometrics class action by invoking the Railroad Safety Act and other federal laws.
In October 2019, U.S. District Judge Matthew Kennelly refused to dismiss a complaint from truck driver Richard Rogers, whose lawsuit alleged BNSF Railway Company violated the Illinois Biometric Information Privacy Act by forcing drivers to scan fingerprints to enter secure rail yards. Specifically, the lawsuit said the company set those rules without first getting written consent from to collect their personal information, and accused BNSF of failing to provide written disclosure of its plans for retaining and destroying the fingerprint scans.
At the time, Kennelly said the Railroad Safety Act, as well as the Interstate Commerce Commission Termination and Federal Aviation Administration Authorization acts, didn’t pre-empt Rogers’ claims. Kennelly also rejected BNSF's arguments that Rogers’ claims were insufficient.
U.S. District Judge Matthew Kennelly
In August 2021, Kennelly granted Rogers’ motion to sever and remand part of his BIPA claim to Cook County Circuit Court. The next month, he filed an amended complaint in federal court, narrowing it to just one claim under BIPA. With just one claim remaining, BNSF moved for summary judgment, a request Kennelly denied in a March 15 opinion.
Again, BNSF argued the federal railroad law regulates the same subject matter as BIPA — secure access to railroad property — but Kennelly said federal law doesn't necessarily preempt the safety concerns addressed by state law, unless it “substantially subsumes” those concerns.
So while the FRSA does address railway security and hazardous materials, Kennelly said, neither that law nor federal regulations concerning transportation or homeland security, say anything about an individual’s right to privacy for their biometric information, such as fingerprints.
BNSF noted it complied with a voluntary public-private program, Customs-Trade Partnership Against Terrorism, which references biometric identification as a control measure for facility access, but Kennelly said “C-TPAT is a cooperative partnership between supply chain companies and DHS with the goal of enhancing security in exchange for facilitated processing of shipments” that only mentions biometric systems without any reference to collection or storage of such data, which is BIPA’s subject matter.
Kennelly further rejected BNSF’s contention that BIPA is an obstacle to Congressional intent because it forces adoption of access controls in Illinois that aren’t uniform with other states. He said the FRSA “expressly contemplates” states having more stringent laws, suggesting BNSF’s presumption of conflict with BIPA to be hypothetical or theoretical.
“BNSF admits that it has not uniformly implemented biometric access controls across its facilities nationwide, though federal regulatory provisions applying to shippers of hazardous material presumably apply across the country,” Kennelly wrote. “Relatedly, Rogers points out that BNSF sometimes regulates entry through a RailPass smartphone app that does not implicate BIPA — a point that BNSF fails to even acknowledge, let alone address, in its reply brief.”
BNSF’s arguments regarding the Interstate Commerce Commission Termination Act similarly failed, Kennelly said, as the company failed to show how complying with BIPA would be unreasonable or have adverse business implications. He likewise said its claims under the Federal Aviation Administration Authorization Act fall short.
Whereas BNSF said complying with BIPA would force it to abandon its biometric reading technology and adopt a policy of manually verifying driver identities, Kennelly noted the company could comply with BIPA in other ways, including the RailPass system it already uses.
“Rogers also points to the undisputed evidence that at least one other major rail carrier has attempted to implement an informed consent regime for truck driver biometrics, which suggests that compliance is feasible,” Kennelly wrote.
BNSF also attacked the merits of Rogers’ claim, saying only employees of a third-party, Remprex, collected information from truckers. Kennelly said conflicting evidence on this point renders summary judgment inappropriate.
Finally, BNSF’s said Rogers’ claim is time barred because he first scanned a fingerprint in December 2012. That turns on the question of claims accrual, Kennelly said, noting the April 2019 complaint is timely because each subsequent fingerprint scan constitutes its own BIPA violation.
BNSF is represented in the case by attorneys Elizabeth B. Herrington and Alex D. Berger, of the firm of Morgan Lewis and Bockius, of Chicago.
Rogers is represented by attorneys Brendan Duffner, Myles McGuire, Evan M. Meyers and David L. Gerbie, of the firm of McGuire Law P.C., of Chicago.