Mary Smigielski Comments on Facebook Privacy Suit for OneTrust DataGuidance

Chicago, Ill. (August 16, 2019) – Chicago Partner Mary A. Smigielski provided commentary to OneTrust DataGuidance on the recent decision from the Ninth Circuit in Nimesh Patel et al v. Facebook, Inc., which affirmed a district court’s class certification for plaintiffs who allege Facebook’s facial recognition technology runs afoul of Illinois’ Biometric Information Privacy Act (BIPA). Ms. Smigielski is co-chair of Lewis Brisbois’ Illinois BIPA Practice and a leading attorney on BIPA class action defense.

Via email, Ms. Smigielski noted what makes this particular case and decision so remarkable: “The Decision can be distinguished due to the significant level of biometric collection involved and thus the level of alleged harm by Facebook […] The Ninth Circuit Court describes the facial recognition technology as being able to obtain information that are ‘detailed, encyclopedic, and effortlessly compiled.’ This is vastly different than technology that acquires an image of points on a person’s finger, or even a fingerprint, particularly when the average person leaves their fingerprints on countless surfaces each day and the fingerprint technology typically cannot be reverse engineered […] The ‘harm’ analysis is fact dependent, and [the facts of the Decision] are different from the average case, akin to Basset v. ABM Parking Services, Inc., where a company merely used technology that turned points on a finger into an algorithm that cannot be reverse engineered.”

Lewis Brisbois established its Illinois BIPA Practice in the wake of the Illinois Supreme Court decision in Rosenbach v. Six Flags Entertainment Corporation, which drastically reduced the threshold required for an individual to seek redress for alleged violations of the state’s biometric privacy law. As co-chair of the practice and a thought leader on this issue, Ms. Smigielski is frequently contacted to speak on developing BIPA matters.

Read the full OneTrust DataGuidance article here.

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