{"id":703,"date":"2018-03-30T12:29:27","date_gmt":"2018-03-30T17:29:27","guid":{"rendered":"https:\/\/blogofnotesite.wpengine.com\/?p=703"},"modified":"2019-07-03T23:34:49","modified_gmt":"2019-07-04T04:34:49","slug":"article-iii-standing-in-biometric-privacy-suits","status":"publish","type":"post","link":"https:\/\/blog.northwesternlaw.review\/article-iii-standing-in-biometric-privacy-suits\/","title":{"rendered":"Article III Standing in Biometric Privacy Suits"},"content":{"rendered":"
\"\"
Image by The U.S. Army<\/a>, CC-BY 2.0 License<\/a>.<\/figcaption><\/figure>\n

As the use of biometric technology has grown increasingly prevalent in our everyday lives, the legal issues surrounding its use have rapidly developed. Ranging from facial recognition technology employed by social media providers to fingerprint technology adopted by employers, biometric technology has important societal implications. While many find ease and benefit in its uses, others sense a justifiable wariness over its proliferation. Biometric technology consists of an individual’s private and unique biologic identifiers. Such information in the hands of large companies poses concerns regarding what those entities do with that private information and, more importantly, what might happen if that information ends up in the hands of nefarious third parties.<\/p>\n

With these rising concerns, many individuals have\u00a0brought suit<\/a> against companies and employers for their use of biometric information. With its passage of the Biometric Information Privacy Act<\/a> (BIPA), Illinois is the only state to have enacted a statute that allows a private right of action for biometric privacy violations. Many of these suits have transformed to class actions, often alleging defendants\u2019 violations of BIPA\u2019s procedural requirements of notice and consent. Defendants, as a strategy to dismiss these claims, try to remove cases to federal courts where Article III standing requirements pose a substantial hurdle to BIPA plaintiffs.<\/p>\n

Article III\u2019s injury-in-fact requirement for standing has long been a source of litigation in federal courts. To establish injury-in-fact, a plaintiff must show he suffered an actual, concrete harm to a legally protected interest. A defendant\u2019s violation of a statutorily-created right, alone, does not necessarily constitute an actual, concrete injury to a plaintiff. While legislatures can create a legally cognizable interest through a statute and its procedural requirements, a plaintiff can only obtain Article III standing if that statute\u2019s procedural requirements were designed to protect a concrete, private interest of the plaintiff. The question then becomes whether BIPA and its requirements aim to protect a concrete, legally recognized consumer interest and whether violations of BIPA\u2019s various provisions amount to an actual, concrete harm that warrants Article III standing.<\/p>\n

The Supreme Court\u2019s 2016 opinion in Spokeo v. Robins<\/a>\u00a0provided valuable guidance for properly conducting a concrete harm analysis for alleged intangible harms, noting that bare procedural violations, without evidence of actual injury, do not warrant Article III standing. Yet, the Spokeo<\/em> ruling left considerable uncertainty as to what types of alleged injuries are sufficient for standing when no actual damages are alleged. This uncertainty extends to biometric privacy claims, where plaintiffs generally invoke procedural violations and seek statutory remedies under Illinois\u2019 Biometric Information Privacy Act, often without alleging any actual damages. There has not yet been significant literature on how these standing issues apply in biometric privacy suits, and case law development in the wake of Spokeo<\/em>\u2019s holding has been scant. Some federal courts<\/a> have begun to address BIPA claims with Spokeo <\/em>in mind, but with seemingly conflicting outcomes. Nonetheless, the jurisprudence of Spokeo<\/em>, as well as important policy considerations, reconciles this conflict and suggests a rejection of standing for plaintiffs that bring biometric privacy suits alleging BIPA procedural violations, especially when the alleged BIPA violations did not actually result in an injury to the plaintiff(s).<\/p>\n

BIPA does not appear to create a concrete legal interest, but rather resembles a regulatory statute that addresses a general, public interest in controlling the dissemination and storage of biometric data. Even if it did explicitly protect a concrete interest, violations of its procedural requirements likely will not evidence a concrete and actual harm. There are some exceptional circumstances, for example, if someone is tagged in an embarrassing photo\u00a0without his consent that leads to his termination from work. However, more common allegations of procedural violations will not suffice. Unlike plaintiffs suing companies for data breaches\u00a0<\/em><\/a>where third parties likely obtained such data for nefarious purposes such as identity theft, BIPA plaintiffs alleging a company\u2019s failure to comply with BIPA procedure can rarely show a significant risk of nefarious misuse of their biometric data.<\/p>\n","protected":false},"excerpt":{"rendered":"

As the use of biometric technology has grown increasingly prevalent in our everyday lives, the legal issues surrounding its use have rapidly developed. Ranging from facial recognition technology employed by social media providers to fingerprint technology adopted by employers, biometric technology has important societal implications. While many find ease and benefit in its uses, others sense a justifiable wariness over its proliferation. Biometric technology consists of an individual’s private and unique biologic identifiers. Such information in the hands of large…<\/p>\n

Read More Read More<\/span><\/a><\/p>\n","protected":false},"author":23,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_feature_clip_id":0,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2},"jetpack_post_was_ever_published":false},"categories":[55],"tags":[],"class_list":["post-703","post","type-post","status-publish","format-standard","hentry","category-board-member-contribution"],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/p9jSvD-bl","jetpack-related-posts":[{"id":58,"url":"https:\/\/blog.northwesternlaw.review\/bipa-and-its-federal-problems\/","url_meta":{"origin":703,"position":0},"title":"BIPA and Its Federal Problems","author":"Alexander Ogren","date":"November 8, 2017","format":false,"excerpt":"It's not fun to have your credit card or identity stolen. It takes time, money, and mental energy to right yourself. Now, instead of just using cards as the gatekeepers, many companies are using customers\u2019 biometric information, such as fingerprints and facial geometry scans,\u00a0to\u00a0control access to private information. But unlike\u2026","rel":"","context":"In "Board member contribution"","block_context":{"text":"Board member contribution","link":"https:\/\/blog.northwesternlaw.review\/category\/board-member-contribution\/"},"img":{"alt_text":"","src":"https:\/\/i0.wp.com\/blogofnotesite.wpengine.com\/wp-content\/uploads\/2017\/11\/4599271172_8d08e52340_b-1024x685.jpg?resize=350%2C200&ssl=1","width":350,"height":200,"srcset":"https:\/\/i0.wp.com\/blogofnotesite.wpengine.com\/wp-content\/uploads\/2017\/11\/4599271172_8d08e52340_b-1024x685.jpg?resize=350%2C200&ssl=1 1x, https:\/\/i0.wp.com\/blogofnotesite.wpengine.com\/wp-content\/uploads\/2017\/11\/4599271172_8d08e52340_b-1024x685.jpg?resize=525%2C300&ssl=1 1.5x"},"classes":[]},{"id":1435,"url":"https:\/\/blog.northwesternlaw.review\/data-control-and-surveillance-in-the-covid-19-response\/","url_meta":{"origin":703,"position":1},"title":"Data Control and Surveillance in the COVID-19 Response","author":"Brian Citro & Kat Albrecht","date":"May 26, 2020","format":false,"excerpt":"In a paper published last month, we argue that the emerging emphasis on digital technologies in the global tuberculosis (TB) response is ushering in a new era of data colonization and surveillance in the name of public health. We assert that, despite some promise, digital adherence technologies for TB create\u2026","rel":"","context":"In "COVID-19"","block_context":{"text":"COVID-19","link":"https:\/\/blog.northwesternlaw.review\/category\/covid-19\/"},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]},{"id":330,"url":"https:\/\/blog.northwesternlaw.review\/carpenter-v-us-the-intersection-of-law-technology-and-privacy\/","url_meta":{"origin":703,"position":2},"title":"Carpenter v. US: The Intersection of Law, Technology, and Privacy","author":"Emma Englund","date":"January 16, 2018","format":false,"excerpt":"Since Steve Jobs unveiled the legendary iPhone in 2007, smartphones have fundamentally changed countless aspects of human interaction from how we navigate to how we communicate. Today, over three-quarters of adults in the United States own a smartphone, making it one of the fastest spreading technologies of all time. The\u2026","rel":"","context":"In "Board member contribution"","block_context":{"text":"Board member contribution","link":"https:\/\/blog.northwesternlaw.review\/category\/board-member-contribution\/"},"img":{"alt_text":"","src":"https:\/\/i0.wp.com\/blogofnotesite.wpengine.com\/wp-content\/uploads\/2017\/12\/17468693762_079222cf4b_k-1024x683.jpg?resize=350%2C200&ssl=1","width":350,"height":200,"srcset":"https:\/\/i0.wp.com\/blogofnotesite.wpengine.com\/wp-content\/uploads\/2017\/12\/17468693762_079222cf4b_k-1024x683.jpg?resize=350%2C200&ssl=1 1x, https:\/\/i0.wp.com\/blogofnotesite.wpengine.com\/wp-content\/uploads\/2017\/12\/17468693762_079222cf4b_k-1024x683.jpg?resize=525%2C300&ssl=1 1.5x"},"classes":[]},{"id":582,"url":"https:\/\/blog.northwesternlaw.review\/corpus-linguistics-impacts-founding-era-meaning\/","url_meta":{"origin":703,"position":3},"title":"Corpus Linguistics Impacts Founding Era Meaning","author":"Thomas Leahy","date":"February 22, 2018","format":false,"excerpt":"Modern lawyers are required to keep up with emerging legal technologies in order to stay competitive and adequately serve their clients, but recent technological innovations have also begun impacting traditionally analogue fields, like originalist constitutional interpretation. Originalist scholarship that focuses on the \u201coriginal public meaning\u201d of a constitutional or statutory\u2026","rel":"","context":"In "Board member contribution"","block_context":{"text":"Board member contribution","link":"https:\/\/blog.northwesternlaw.review\/category\/board-member-contribution\/"},"img":{"alt_text":"","src":"https:\/\/i0.wp.com\/blogofnotesite.wpengine.com\/wp-content\/uploads\/2018\/02\/mari-helin-tuominen-38313-unsplash-1024x682.jpg?resize=350%2C200&ssl=1","width":350,"height":200,"srcset":"https:\/\/i0.wp.com\/blogofnotesite.wpengine.com\/wp-content\/uploads\/2018\/02\/mari-helin-tuominen-38313-unsplash-1024x682.jpg?resize=350%2C200&ssl=1 1x, https:\/\/i0.wp.com\/blogofnotesite.wpengine.com\/wp-content\/uploads\/2018\/02\/mari-helin-tuominen-38313-unsplash-1024x682.jpg?resize=525%2C300&ssl=1 1.5x"},"classes":[]},{"id":1187,"url":"https:\/\/blog.northwesternlaw.review\/neuroscience-and-the-active-jury\/","url_meta":{"origin":703,"position":4},"title":"Neuroscience and the Active Jury","author":"Steve Friedland","date":"February 17, 2020","format":false,"excerpt":"The following piece is a part of NULR of Note's \u201cBring Back The \u201890s\u201d initiative, aimed at exploring the evolution of legal thinking over the past three decades. For more, click here. Photo by Timothy L Brock on Unsplash In 1990, the Northwestern University Law Review published The Competency and\u2026","rel":"","context":"In "Bring Back the '90s"","block_context":{"text":"Bring Back the '90s","link":"https:\/\/blog.northwesternlaw.review\/category\/professor-contribution\/bring-back-the-90s\/"},"img":{"alt_text":"","src":"https:\/\/i0.wp.com\/blog.northwesternlaw.review\/wp-content\/uploads\/2020\/01\/timothy-l-brock-_r6X-xFcASk-unsplash.jpg?resize=350%2C200&ssl=1","width":350,"height":200,"srcset":"https:\/\/i0.wp.com\/blog.northwesternlaw.review\/wp-content\/uploads\/2020\/01\/timothy-l-brock-_r6X-xFcASk-unsplash.jpg?resize=350%2C200&ssl=1 1x, https:\/\/i0.wp.com\/blog.northwesternlaw.review\/wp-content\/uploads\/2020\/01\/timothy-l-brock-_r6X-xFcASk-unsplash.jpg?resize=525%2C300&ssl=1 1.5x, https:\/\/i0.wp.com\/blog.northwesternlaw.review\/wp-content\/uploads\/2020\/01\/timothy-l-brock-_r6X-xFcASk-unsplash.jpg?resize=700%2C400&ssl=1 2x, https:\/\/i0.wp.com\/blog.northwesternlaw.review\/wp-content\/uploads\/2020\/01\/timothy-l-brock-_r6X-xFcASk-unsplash.jpg?resize=1050%2C600&ssl=1 3x, https:\/\/i0.wp.com\/blog.northwesternlaw.review\/wp-content\/uploads\/2020\/01\/timothy-l-brock-_r6X-xFcASk-unsplash.jpg?resize=1400%2C800&ssl=1 4x"},"classes":[]},{"id":1317,"url":"https:\/\/blog.northwesternlaw.review\/stay-at-home-videoconferencing-and-a-baptism-of-fire-for-the-california-consumer-privacy-act\/","url_meta":{"origin":703,"position":5},"title":"Stay-at-Home, Videoconferencing, and a Baptism of Fire for the California Consumer Privacy Act","author":"Michael P. Goodyear","date":"April 21, 2020","format":false,"excerpt":"The novel coronavirus COVID-19 has rapidly become one of the worst public health crises in U.S. history. Yet this is not only a critical moment for health, but also for privacy. With social isolation orders in forty-two states, as well as Washington, D.C., Puerto Rico, and Guam, collaborative technological services\u2014such\u2026","rel":"","context":"In "COVID-19"","block_context":{"text":"COVID-19","link":"https:\/\/blog.northwesternlaw.review\/category\/covid-19\/"},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]}],"_links":{"self":[{"href":"https:\/\/blog.northwesternlaw.review\/wp-json\/wp\/v2\/posts\/703","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blog.northwesternlaw.review\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blog.northwesternlaw.review\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blog.northwesternlaw.review\/wp-json\/wp\/v2\/users\/23"}],"replies":[{"embeddable":true,"href":"https:\/\/blog.northwesternlaw.review\/wp-json\/wp\/v2\/comments?post=703"}],"version-history":[{"count":0,"href":"https:\/\/blog.northwesternlaw.review\/wp-json\/wp\/v2\/posts\/703\/revisions"}],"wp:attachment":[{"href":"https:\/\/blog.northwesternlaw.review\/wp-json\/wp\/v2\/media?parent=703"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blog.northwesternlaw.review\/wp-json\/wp\/v2\/categories?post=703"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blog.northwesternlaw.review\/wp-json\/wp\/v2\/tags?post=703"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}