News

(May 3, 2019) – Chicago Partner Mary A. Smigielski was recently quoted by Legaltech news for an article discussing the potential legal risks for retailers that use facial recognition technology, following the passage of Illinois’ Biometric Information Privacy Act (BIPA) and the wave of litigation it has created. Since the Illinois Supreme Court decision in Rosenbach v. Six Flags Entertainment Corporation, the threshold required for an individual to bring suit under BIPA has been drastically reduced. The article, titled “Retailers Using Facial Recognition Should Be Wary of Illinois and Followers,” examines this trend of legislation and litigation.

In the article, Ms. Smigielski outlined the exceptional dangers of utilizing facial recognition technology within Illinois.

“Because Illinois is still the only state to have a private right of action and the consequence is $1,000 for negligence or $5,000 for intentional or reckless violations or actual damage … there’s a great risk to using that technology in a state like Illinois,” said Ms. Smigielski.

She also explained how low the threshold actually is to bring a lawsuit under BIPA.

“You only need a technical violation,” Ms. Smigielski noted. “You don’t need to have a data breach or have the information stolen, just the mere fact that you are perceived without having consent is violation.”

Ms. Smigielski is a member of Lewis Brisbois’ Labor & Employment Practice and co-chair of its Illinois BIPA Practice. She is on the cutting-edge of the defense of class action litigation brought against employers and others under BIPA, and works closely with national insurance carriers and private clients for defense, compliance and mitigation of risk related to BIPA.

Read the full Legaltech news article here (subscription may be required), and visit our Illinois BIPA Practice page to learn more.