What Constitutes Biometric Data?

Facebook’s record-breaking $5 billion settlement, proves the FTC takes consumer privacy very seriously. Will Facebook’s settlement spark other class-action lawsuits based on claims of privacy abuse relating to the Biometric Information Privacy Act (BIPA)? Forensic Expert Lee Neubecker and attorney David Rownd from Vedder Price discuss the ramifications of this settlement and dissect what really constitutes biometric data?

Part 2 of our 3 Part Series on BIPA

The Video Transcript Follows.

Lee Neubecker (LN): I am back again with David Rownd, and David’s going to talk a little bit more about BIPA. We’re talking about in the news recently, Facebook just reached a very large settlement related to claims of abuse relating to BIPA. What does this mean with such a large settlement? Is this inviting all the plaintiff attorneys to file more and more class-action lawsuits?

David Rownd (DR): Well, this has been a very active area of the law, and yes, the answer is yes. There’s a lot of class actions going on in this area, and it’s largely as a result of the low threshold to become a plaintiff in that you don’t have to establish specific damages, and the mere fact that the law has been violated can make you an aggrieved party who has the standing to file a lawsuit.

LN: Just so we can be clear, can you give some examples of what constitutes BIPA biometric data and what isn’t?

DR: Well, fingerprints are biometric data, a retina scanner, the veins in your hands can be evaluated as biometric data, and other things as well.

LN: What about the way you walk or the way you talk?

DR: Their voice recognition has been considered to be biometric data. Handwriting is not biometric data.

LN: So, devices like Siri and Alexa, is there a potential they’re going to fall into that?

DR: I think that that is certainly a possibility.

LN: So are we going to have to sign a contract before we use Alexa or Siri to protect, for them to be protected?

DR: I wouldn’t propose to advise Siri and Alexa as to how to conduct their business.

LN: Very good answer.

DR: I think that there is a possibility, certainly.

LN: So what do you think the future holds for BIPA-related lawsuits?

DR: Well, this is certainly an opening for plaintiffs lawyers to go after, and you see this in a variety of different areas where the law creates a low threshold to get in the courthouse door and potentially high exposure for defendants. You have plaintiffs lawyers who are attracted to that and they go after it, and that’s currently what’s happening now with BIPA in Illinois and why there are so many lawsuits filed.

LN: And I think it relates to, the fees are based on each instance of biometric data, so potentially you have multiple videos, multiple pictures, this data is stored, and if you can be aggrieved without the data even getting hacked, it’s a very large potential, which is probably why Facebook settled because what it could be much greater. And they probably weighed their risk and decided it made sense to settle.

DR: I think that’s probably right.

LN: Well, thanks again for being on the show, I really appreciate it.

DR: All right, thanks for having me.

View Part 1 of our 3-Part Series on Biometric Data

Part 1 of our 3-Part Series on Biometric Information

Other Related Articles on Biometric Data

FTC’s Press Release on Facebook’s settlement on Biometric Data

https://www.ftc.gov/news-events/press-releases/2019/07/ftc-imposes-5-billion-penalty-sweeping-new-privacy-restrictions

If you live in Illinois and use Facebook read this story from WGN, about Biometric Data.

https://wgntv.com/2020/01/30/facebook-may-pay-550-million-to-illinois-users-to-settle-lawsuit/

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BIPA: How it May Affect You

Does your employer require your fingerprint when you clock in for work? That fingerprint is considered private biometric information. BIPA is the Illinois law that protects its use. Experts Lee Neubecker and David Rownd share how this law affects employers that have Illinois based employees.

Biometric Information Privacy Act (BIPA) is a law that covers the employer’s use of biometric information of its employees. Biometrics are the physiological means to gather an individual’s uniqueness. The oldest most widely used is a fingerprint but other biometric identifiers may be also used such as; facial recognition, photos, retina scan, voice recognition, ear shape, and hand scans all are considered private biometric information. The Illinois BIPA law is designed to govern, secure, store and prohibit the sale of biometric information. Forensic Expert Lee Neubecker and David Rownd from Vedder Price discuss how BIPA may affect employers that have satellite offices in Illinois.

Part 1 of a 3 Part Series on Illinois’ Biometric Information Protection Act

The Video Transcript on BIPA: How It May Affect Employers in Illinois.

Lee Neubecker (LN): Hi I am here again with David Rownd from Vedder Price. Thanks for being on the show David

David Rownd (DR): Thanks for having me

LN: David is an attorney that specializes in defending class action lawsuits also employment litigation, trade secret theft, and misappropriation. I asked him to come on the show today to talk a little bit about BIPA which is the Illinois Biometric Information Protection Act and specifically he deals with a lot of trading security-related financial services firms and since that law applies to Illinois and many trading firms in New York have satellite offices I wanted him to talk a little bit about the act and some of the concerns that employers should have if they have employees working in Illinois. So, David, can you tell us a little bit about BIPA what it is and what it entails?

DR: Basically it covers the employers use of biometric information of its employees and this can be a retinal scan it can be a fingerprint it can be a number of different things and it can be used for time cards access to the workplace and things like that and employers are using biometric information because its an easy way to keep track of employees. However, it is also a privacy issue and that’s where the BIPA comes in and BIPA is intended to regulate employers ability to utilize biometric information and put certain requirements on them for notifying employees they are using it and notifying employees why they are using it keeping written records of the biometric information and it specifically prohibits the sale of biometric information to third parties.

LN: It’s especially troublesome too because if you lose your biometric unique identifiers you can’t necessarily get those back unlike a social security number you could replace a social security number but if someone is able to copy your retina scan your fingerprints what not it could cause a lot of permanent damage.

DR: That’s true you only get one of those things

LN: So we will be talking later in the series next well be talking a little bit about what employers should do before they land in trouble with BIPA to help protect against finding themselves embroiled in litigation and then finally we’ll talk a little bit about some of the national happenings with Facebook and other entities who have been en snagged in the BIPA trap and we’ll conclude with there so thanks for being on the show today.

DR: Oh thanks for having me.

View related Employment Litigation articles on our website.

EMR or Electronic Medical Records May Contain Private Biometric Information
Forensic Data Collection can be used in cases where ESI is breached or stolen
Private Biometric Information is Electronically Stored Information (ESI) and governed by BIPA
An individual’s photo is considered biometric information.

Employment Litigation articles

Learn More about Illinois BIPA Litigation

http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=3004&ChapterID=57

Protection under BIPA

https://www.vedderprice.com/

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