About face: court finds biometric information creates unique privacy rights

A recent decision from a California federal court increases the risks to companies that use biometric information and reinforces the need to strictly comply with the requirements of biometric protection statutes.

Key Takeaways

• The suit arises from the Illinois Biometric Information Privacy Act (BIPA), which governs the collection, storage, and use of biometric information, including finger prints, retina or facial recognition scans, or photographic likenesses, that can be used to identify an individual. BIPA provides for a private right of action, statutory damages, and attorneys’ fees, and has been the subject of dozens of recent class action lawsuits.
• The court in In re: Facebook Biometric Info. Priv. Litig., determined that the plaintiffs alleged an injury in fact simply by virtue of the defendant’s collection and storage of their likenesses without consent because the Illinois state legislature had created a right to privacy in enacting BIPA.
• While companies that collect, store, and use biometric data should be concerned by the In re: Facebook decision, there are ways to mitigate, or even avoid, liability. A strong compliance program surrounding biometrics, with a focus on obtaining customer or employee consent, is essential.

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