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Here’s Why Tech Companies Keep Paying Millions To Settle Lawsuits In Illinois

Illinois is one of the few states in the United States that has a law that requires companies to obtain consent from consumers before obtaining their biometric data, and their The rule, passed in 2008, is seen as the toughest in the nation. The law, called the Biometric Information Privacy Act (BIPA), not only requires you Companies to get people’s permission before collecting biometric data such as fingerprints or facial geometry scans. It also sets rules about how businesses must safeguard such information, prohibits businesses from selling Illinois residents’ biometric data, and allows Illinois residents to sue businesses for alleged violations of the law.

In the nearly 15 years since its approval, services that use biometric data, from palm print recognition to buy groceries to facial recognition software to unlock your smartphone: have become increasingly common. But the legislation in the United States has not been maintained. There is no federal legislation on the subject, and among a select few states that have taken action, the Illinois law is considered exceptionally effective.

“It’s the law of the gold standard,” said Chad Marlow, senior policy adviser for the American Civil Liberties Union.

As a result, Illinois has become the benchmark for regulating biometric technologies like facial recognition software. Groups like the ACLU and individual consumers have used the law to sue a growing list of prominent companies, from Facebook to Snapchat, and in some cases curb the behavior of tech companies offering products and services in the state. In the process, it has sent a message about the importance of personal data privacy that reverberates far beyond Illinois.

as it begins

In Illinois, BIPA arose, at least in part, because of concerns about data collected by a bankrupt fingerprint-scanning payment company, which later went bankrupt. Lawmakers were concerned that data collected by Pay By Touch, which had been available at Jewel-Osco grocery stores in the Chicago area, could be sold in the wake of its bankruptcy (the company was auctioned off in pieces).

The text of the law, introduced in early 2008, mentions Pay By Touch by name and notes that, unlike a Social Security number, biometric identifiers are “biologically unique” and cannot be simply changed if they are committed.

“The full ramifications of biometric technology are not fully understood,” the law says.

Indeed, at the time, companies in the United States were seeking biometric technologies, but consumers were not as familiar with them as we are today, and the impact of such technologies was impossible to calculate. It wasn’t until 2010 that Facebook started using facial recognition software to automatically tag users in images uploaded to the social network, for example, and it wasn’t until 2013 that Apple first added a fingerprint sensor to the iPhone for unlock the device. BIPA was passed 12 years before the first known wrongful arrest in the United States due to facial recognition.

Experts say one of the law’s most powerful provisions is that it allows people to sue, rather than leaving it up to the state. (Texas and Washington, which have similar rules of their own, leave the decision to take legal action to their states’ attorneys general.) Businesses that have “intentionally or recklessly” violated the BIPA may owe up to $5,000 for each violation; those who have broken the law due to negligence may owe up to $1,000 per violation.

That right to sue “has been one of the only ways companies are taking enforcement seriously,” said Hayley Tsukayama, a senior legislative advocate at the Electronic Frontier Foundation, a digital rights group. “And of course it’s one of the reasons why the people who hate him hate him with a burning passion.”

Despite BIPA’s legal teeth, the law did not show its full force until 2015. That year, Chicago-based law firm Jay Edelson, Edelson PC, led a class-action lawsuit against Facebook alleging that the social network violated BIPA by using facial recognition software to identify people in users’ photos. and suggest users tag those people. by name. The lawsuit essentially argued that Facebook was collecting and retaining users’ facial biometric data (measurements of their facial geometry extracted from images) without asking upfront or asking for permission, which is against Illinois law.

“Our client was literally worried that he would lose his biometric data and be out in the world,” Edelson said of the plaintiff’s initial decision to sue the social network.

Facebook agreed to settle the lawsuit in early 2020 for $550 million, and a judge increased that amount to $650 million in March 2021. (This equates to $397 per person eligible for the payment, Edelson said, an amount that may seem small but is much more than people receive in many class action settlements.)

long range impacts

Since then, Edelson has worked on dozens of BIPA lawsuits and estimates that more than 500 lawsuits have been filed alleging violations of the law. Many of the lawsuits relate to companies using systems that have employees clock in or out with a fingerprint or face, but in addition to Facebook, numerous big tech companies have also agreed to collective settlements worth hundreds of millions of dollars. Dollars.

last year, tik tok agreed to pay $92 million to settle a class action lawsuit alleging it illegally collected users’ biometric data and then shared it with other companies; the lawsuit was divided into a national class and an Illinois class, with those in the Illinois class able to receive up to six times more money because of BIPA. Google agreed in April to pay $100 million to settle a lawsuit related to a photo grouping feature in Google Photos, and Parent company of Snapchat Snap agreed in August to pay $35 million to settle a lawsuit related to filters and lenses in the Snap app (neither company has admitted to wrongdoing).

“In the big picture, all of these suits act in concert with each other, which is what makes BIPA so powerful,” Marlow said.

The results are not always limited to paying consumers money, and the impacts of lawsuits can go beyond Illinois state boundaries. For example, a settlement with controversial facial recognition company Clearview AI (which Edelson accepted pro bono on behalf of the ACLU and other nonprofit groups) had a far-reaching impact when it was settled earlier this year: It led to an agreement that the company will not sell its software to most companies in the United States, a decision that largely restricts its use to the country’s law enforcement agencies.

The result of the lawsuit “is a total game changer, in our minds,” Edelson said.

The Facebook lawsuit may also have had an impact beyond Illinois. In November 2021, less than a year after a judge increased the settlement amount of its BIPA case, the company said it would stop using facial recognition software to automatically recognize people in photos and videos. It also announced that it would remove related data, which is associated with more than a billion people’s faces (it will, however, continue to work on facial recognition technology and may use it in its future products).

“I’m not sure that’s a decision they would have made if it wasn’t for BIPA, but certainly making that decision eliminates the possibility of BIPA noncompliance with facial images and facial geometry,” said Lior Strahilevitz, a professor of law at the University of Chicago.

Facebook did not respond to a request for comment. The company did not mention BIPA when it announced its decision to stop using the technology.

To avoid even the possibility of breaking the law, some companies have gone so far as to decide not to sell a product in the state, as with Sony’s robot dog Aibo, which, according to the company, mimics the behavior of a real pet by using facial recognition software to “behave differently with familiar people”.
Some other companies are limiting features that include biometrics to people who live outside of Illinois. This was the case in 2018, when Google added a feature to your Google Arts & Culture app which allows people to take a selfie which is then compared to historical paintings to find the one that most closely resembles their mug.

“That definitely wasn’t available in Illinois, and there was kind of a local, ‘Hey, that’s interesting. Why can’t we use that?'” Strahilevitz said.

Others try (and fail) to pass similar rules

Following the passage of BIPA, Texas and Washington passed their biometric laws in 2009 and 2017, respectively. But the laws have barely been put to the test (in 2022, Texas also sued Facebook over allegations that it illegally appropriated Texans’ facial recognition data), likely because it’s up to states, rather than individual citizens, to decide whether to sue.

The basic ideas behind BIPA “seem to be consistent with popular sentiment,” Strahilevitz said, yet lawmakers in states like California and Maine have tried unsuccessfully to pass their own versions of the rule.

Experts say part of the reason for these failures is that a push has built against such biometrics laws, particularly from companies large and small that may be their targets.

However, the EFF’s Tsukayama, whose group worked with California State Senator Bob Wieckowski on the bill that inserted in February that would have created a law similar to BIPA in California, he believes it could be revived in the future, although stalled in committee this spring.

After all, Tsukayama pointed out, “I can change a password, but I can’t change my face.”

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