A federal judge has refused to end a class action biometrics lawsuit against Turing Video, a vendor of facial-scanning kiosks used for COVID-19 screening.
Attorneys from the firm of Stephan Zouras, of Chicago, filed suit in Cook County Circuit Court in July 2021 against San Mateo, California-based Turing, which removed the complaint to federal court. The lawsuit was filed on behalf of Sandra Trio, who worked as a cake decorator at a Jewel-Osco store in northwest suburban Algonquin from April 2019 to June 2021
Trio said her store used a Turing Shield device to automatically measure body temperature on workers’ foreheads as a COVID-19 mitigation effort. The complaint said Turing violated the Illinois Biometric Information Protection Act by scanning and collecting facial geometry information without obtaining written consent or providing notices concerning how data will be used, stored, shared or ultimately destroyed.
Turing asked U.S. District Judge John Blakey to dismiss the complaint, a motion he denied in an opinion filed Sept. 26.
In arguing for dismissal, Turing said the Labor Management Relations Act pre-empts Trio’s claims; claimed the court lacks personal jurisdiction; contended Illinois’ extraterritoriality doctrine and the U.S. Public Readiness and Emergency Preparedness Act bar Trio’s complaint; and said she failed to state a claim under BIPA.
Blakey said although Turing is based in California, it has sufficient contacts within Illinois based on having at least 30 customers in the state, with just one purchase covering 106 Shields for $366,600, and that is the product specifically linked to Trio’s complaint.
The judge also disposed of Turing's attempt to use federal labor law to pull the plug on Trio's claims against the screening device maker. Turing argued Trio's union contract with Jewel-Osco means the federal Labor Management Relations Act should pre-empt union workers' claims under the BIPA law.
But the judge said Trio's contract with her employer should not apply to her claim against Turing, because Turing was not a party to Trio's union's collective bargaining agreement, nor did Turing have a contract with the grocery chain.
“Turing’s obligations under BIPA stand wholly independent of whether (Trio’s) union may have consented to Jewel-Osco, her employer, collecting and disseminating her biometric data,” Blakey wrote. “Resolution of the state law BIPA claims would not require this court to interpret any collective-bargaining agreement, and instead depend upon the entirely unrelated question of whether Turing provided (Trio) with the necessary disclosures and obtained from her the required written release before it collected and disseminated her biometric information.”
Trio didn’t dispute the possibility of applying the extraterritoriality doctrine to BIPA - meaning the judge could rule the Illinois law cannot apply outside Illinois. But Blakey agreed she sufficiently alleged the conduct underpinning her allegations occurred in Illinois. Blakely didn’t foreclose Turing from raising the argument after discovery, but said Trio’s complaint was adequate to avoid dismissal.
The judge also discounted Turing's attempt to find refuge from BIPA within the federal Public Readiness and Emergency Preparedness Act. While Turing argued the use of its scanners should be protected as a needed emergency measure to counter the Covid pandemic, Blakey said that law only conveys such legal immunity if the U.S. Department of Health and Human Services secretary issues a declaration that specifically addresses a measure used to counter a pandemic. In this instance, the federal government issued no such directive regarding facial scans for temperature checks due to the spread of coronavirus.
“In Turing’s views, the Turing Shield has ‘de facto clearance’ as a ‘qualified pandemic or epidemic product’ under the PREP Act because the Turing Shield complies with the recommendations of an April 2020 enforcement policy issued by the Food and Drug Administration,” Blakey wrote, adding “Turing’s argument relies on a flawed reading of” the HHS’s enforcement policy for telethermographic technology.
Blakey added the policy clearly states such systems, intended for medical purposes, need U.S. Food and Drug Administration approval, or at least a label cautioning the device doesn’t have FDA approval or clearance. He also said “there is nothing in the record” demonstrating the Turing Shield is a “covered countermeasure.”
Finally, Blakey rejected Turing’s argument the BIPA claim is insufficient because the data it collects doesn’t meet the legal definition of facial geometry. He first said Turing didn’t cite BIPA itself and further explained Trio adequately alleged a collection of her biometric data under the BIPA law.
Trio “alleged that the Turing Shield’s ‘artificial intelligence algorithms’ analyze a user’s face scan to not only screen a user’s temperature and detect for face masks, but also recognize a user against a database that can store up to 20 million faces,” Blakey wrote. “Further discovery may shed light on exactly how the Turing Shield does this but, at the pleading stage, (Trio’s) allegations suffice to survive” the dismissal motion.
Blakey gave Turing until Oct. 24 to file a response to the complaint.
Trio is represented in the action by attorneys Andrew C. Ficzko, Ryan F. Stephan and James B. Zouras, of the Stephan Zouras firm.
Turing is represented by attorneys Erin B. Hines, Melissa A. Siebert and Ambria D. Mahomes, of the firm of Shook Hardy & Bacon, of Chicago.