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Retaining Fingerprint Information Does Not Necessarily Violate The Illinois Biometric Act

In one of only three cases decided under the Illinois Biometric Privacy Act (“BIPA”), 740 ILCS 14/1 et seq., an Illinois federal court recently dismissed a putative class action and confirmed that a suit cannot be based solely on a technical violation of BIPA. Adina McCollough v. Smart Carte, Inc. No. 16 C 03777, 2016 U.S. Dist. LEXIS 100404 (N.D. Ill. Aug. 1, 2016). The Court held that unless the Plaintiff can state a real injury-in-fact or identify an aggrieved party, they cannot seek relief against a private entity for a mere procedural violation.

In Chicago, Smart Carte operates storage lockers that use the renter’s fingerprints as a key. Plaintiff McCollough claimed to have used a Smart Carte locker at a train station five times in 2015. She asserted that after retrieving her items from the locker, Smart Carte retained her biometric information (fingerprints) without notification and without her written consent.

BIPA states that no private entity may collect a person’s biometric information without first providing the subject with written notice regarding the length of time the information will be stored. BIPA requires the entity to obtain a written release from the subject. 740 ILCS 14/15(b).

McCollough’s three-count Complaint asserted class action status based on the amount of Smart Carte lockers in use. Smart Carte moved to dismiss the Complaint for lack of jurisdiction and failure to state a claim.

The Court considered two issues, the first was whether McCollough could claim statutory standing as an “aggrieved person” under BIPA. McCollough cited the Black’s Law Dictionary definition of aggrieved: “a party entitled to a remedy; esp., a party whose personal, pecuniary, or property rights have been adversely affected by another person’s actions…” The court ruled that McCollough failed to qualify because McCollough did not allege any harm suffered as a result of the technical violation, and the Court was unable to identify how McCollough was adversely impacted. In the absence of a stated real injury, the Court found McCollough lacked statutory standing under BIPA.

As to the second issue - Smart Carte’s contention that the Court lacked jurisdiction under article III – the Court relied upon a recent United States Supreme Court decision Spokeo Inc. v Robins, 136 S. Ct. 1540 (2016) (“Spokeo”), which identified three prongs necessary to satisfy article III, including that plaintiff must allege an injury-in-fact.

The court ruled that McCollough alleged a technical violation of BIPA without identifying an injury-in-fact suffered as a result. The Court noted that a “deprivation of procedural right without some concrete interest that is affected by the deprivation…is insufficient to create article III standing.” Summers v. Earth Island Institute, 555 U.S. 488, 496 (2009). “McCollough undoubtedly understood when she first used the system that her fingerprint data would have to be retained until she retrieved her belongings from the locker,” the Court said, questioning “how can there be an injury from the lack of advance consent to retain the fingerprint data beyond the rental period if there is no allegation that the information was disclosed or at risk of disclosure. It was simply retained.”

The Complaint was dismissed with prejudice in federal court and without prejudice with regard to any claim the Plaintiff may assert in state court.

If this ruling is an indication, plaintiff class action attorneys bringing lawsuits under BIPA in federal court (in Chicago at least) should expect their complaints to be closely scrutinized by the Court. To properly assert standing and jurisdiction, they will need to do more than identify technical violations of BIPA. Rather, they will need to plead a concrete interest that is affected by the deprivation of a procedural right or allege harm suffered as a result of the technical violation.

 

[About the Author: Josh Kantrow practices in Lewis Brisbois’ Chicago office. He is a Vice-Chair of the firm’s Professional Liability Practice and a member of the firm’s Class Action Practice.]

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