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Apple Must Face Claim App Violates Illinois Biometric Law (1)

Nov. 13, 2020, 3:54 PM; Updated: Nov. 13, 2020, 9:44 PM

Apple Inc. will have to face a class action claiming the facial recognition feature in its Photos app violates the Illinois Biometric Information Privacy Act, an Illinois federal court said.

Although the opinion by Chief Judge Nancy J. Rosenstengel of the U.S. District Court for the Southern District of Illinois sent two BIPA claims back to state court for lack of jurisdiction, the plaintiffs’ claim that the app violates the statute by collecting and storing their biometric identifiers and information without consent survived.

The case illustrates the issue of “Article III” standing in BIPA cases, attorneys say. To meet Article III standing and proceed in federal court, a claim must show “concrete and particularized” injury.

“The line is drawn for purposes of a concrete and particularized claim when the conduct that’s being challenged uniquely affects the individual plaintiff as opposed to affecting the public in general,” said Christopher G. Dean, a business litigator at McDonald Hopkins LLC.

The plaintiffs alleged that the app uses proprietary software and facial recognition technology to scan face geometries from users’ photographs, creating a unique face print for every person in a picture. They also said Apple pre-installs the app on its devices and it can’t be removed or modified.

The plaintiffs sufficiently alleged that the facial scans are biometric identifiers under BIPA, the court said Thursday. Neither are the scans excluded from the statute’s definition of biometric information, it said.

But Apple argued it never collects or stores the information, because the entire process and storage is done locally on users’ devices. But the plaintiffs alleged that Apple used its software to create, gather, and harvest face prints, which it stored in secret facial recognition databases over which it alone had access, the court said.

At this stage of the proceedings, taking the plaintiffs’ allegations as true, they stated a plausible cause of action that survives Apple’s motion to dismiss, the court said.

The claims the court remanded to state court were that Apple didn’t have a written plan for retention and destruction of the biometric information the app collects and that it profits from collecting the information in violation of BIPA.

Those alleged violations didn’t meet the “concrete and particularized” definition required by Article III, so the federal court doesn’t have jurisdiction over them, Rosenstengel said.

“The case is split between two different courts,” said Pete Wozniak, a partner at Barnes & Thornburg LLP in Chicago. “Apple will have to fight it in two different arenas.”

What’s Next

The case is “indicative” of trends in BIPA class action litigation, said Tom Ahlering, a partner at Seyfarth Shaw LLP in Chicago. While BIPA claims were originally filed largely in an employment context, the Apple case illustrates a growing number of consumer technology-oriented BIPA lawsuits, he said.

The recent Facebook BIPA settlement, in which the social media giant was ordered to pay hundreds of millions of dollars, sits alongside the Apple case to show plaintiffs’ lawyers aren’t afraid to target large tech companies, Ahlering said.

The case also underscores an increasing number of facial recognition BIPA lawsuits, as opposed to lawsuits that allege violations of fingerprint collection and retention, said David Oberly, a biometric privacy lawyer at Blank Rome LLP in Cincinnati.

The Facebook settlement and a general public distrust of facial recognition technology means companies should gird themselves for future litigation in this space and ensure they’re complying with biometric privacy requirements, he said.

“Facial recognition is quickly becoming a new target,” Oberly said. “Plaintiffs are incentivized to go after these big tech companies and go after these huge paydays.”

Schlichter Bogard & Denton LLP and Montroy Law Offices LLC represented the plaintiffs. DLA Piper LLP (US) represented Apple.

The case is Hazlitt v. Apple Inc., 2020 BL 438516, S.D. Ill., 3:20-CV-421-NJR, 11/12/20.

(Updates story with additional reporting.)

To contact the reporters on this story: Jake Holland in Washington at jholland@bloombergindustry.com; Bernie Pazanowski in Washington at bpazanowski@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Patrick L. Gregory at pgregory@bloomberglaw.com; Kibkabe Araya at karaya@bloombergindustry.com

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