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Proposed Amendment to Illinois Law Would Have Changed Shape of Biometric Privacy Litigation

Late last week, the Illinois state senate considered an amendment tacked onto to an unrelated bill that would have revised the Illinois’ Biometric Information Privacy Act, a law that has been the subject of much debate and litigation in the past year.  This amendment had the potential to drastically affect the current litany of lawsuits lodged against technology companies over their photo-tagging services.  In the wake of heavy lobbying against the amendment by opponents to the change, and as the legislative session neared a close, the senator who proposed the amendmentannounced that it would, for now, be put on hold.

The use of facial recognition technology by certain web and mobile services with social aspects has become an emerging concern in the past year.  Multiple social media companies have been ensnared in litigation over their use of facial recognition technology to provide certain photo-tagging and other related services, with plaintiffs seeking statutory damages under Illinois’ Biometric Information Privacy Act (BIPA).

Plaintiffs alleging violations of BIPA generally assert that certain web and mobile services have amassed users’ faceprints without the requisite notice and consent by using advanced facial recognition technology to extract biometric identifiers from uploaded user photographs.  Defendants, in turn, have argued that BIPA expressly excludes from its coverage “photographs” and “any information derived from photographs” and that the statute’s use of the term “scan of hand or face geometry” was only meant to cover in-person scans of a person’s actual hand or face (not the scan of an uploaded photograph).  Thus far, such defense arguments have been rejected at the early motion to dismiss phase of several ongoing disputes.

The amendment to BIPA (attached to a pending bill regarding unclaimed property) would shorten the reach of the law, echoing the interpretations of BIPA advanced by the various defendants in ongoing litigation.  The BIPA amendment expressly excludes both physical and digital photographs from the definition of “biometric identifier” and most notably, limits the definition of “scan of hand or face geometry” to in-person scans (“data resulting from an in-person process whereby a part of the body is traversed by a detector or an electronic beam”).  Such an amendment would effectively abrogate BIPA claims related to the collection of user faceprints by online services.

It is unclear whether this revision to the Illinois biometric privacy law will be taken up and debated when the Illinois legislature reconvenes.

© 2022 Proskauer Rose LLP. National Law Review, Volume VI, Number 152
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About this Author

Jeffrey D Neuburger, Proskauer Rose Law Firm, Technology Attorney
Partner

Jeffrey Neuburger is co-head of Proskauer’s Technology, Media & Telecommunications Group, head of the Firm’s Blockchain Group and a member of the Firm’s Privacy & Cybersecurity Group.

Jeff’s practice focuses on technology, media and intellectual property-related transactions, counseling and dispute resolution. That expertise, combined with his professional experience at General Electric and academic experience in computer science, makes him a leader in the field.

As one of the architects of the technology law...

212-969-3075
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