This month, an Illinois resident filed a proposed class action lawsuit in Illinois state court against the Chicago Blackhawks (the “Blackhawks”) alleging that the NHL team utilizes facial recognition technology at its home games in violation of the Illinois Biometric Information Privacy Act (“BIPA”).
According to the complaint, plaintiff Keith Allen attended a Blackhawks home game in December 2018, where he had his facial geometry scanned via facial recognition cameras used by the Blackhawks at their home rink, the United Center. The complaint further alleges that the Blackhawks failed to inform Allen (i) in writing that it was collecting his biometric identifiers or information; (ii) the purpose and length of term for such collection; and (iii) failed to obtain his written consent before the Blackhawks collected his facial geometry scan.
Because facial geometry is a unique and personal identifier, Allen alleges that the Blackhawks ran afoul of BIPA, which sets forth stringent disclosure rules for the collection, storage, use, sharing and destruction of a consumer’s fingerprints, facial scans and any other biometric identifier. As a result, Allen argues that he, and others similarly situated, “lost the right to control their biometric identifiers and information.”
The complaint points out that in enacting BIPA in 2008, the Illinois legislature recognized biologically unique identifiers, such as facial geometry, cannot be changed when compromised, and thus, amongst other things, individuals are at a heightened risk to be a victim of identity theft and other related cybercrimes.
Allen seeks to represent a class of all individuals who had their facial geometry scans collected or possessed by the Blackhawks in Illinois from October 2014 to present. Allen and the proposed class seek an award of liquidated or actual monetary damages for each violation of BIPA, an injunction barring the Blackhawks from committing further violations of BIPA, as well as reasonable attorneys’ fees and costs incurred, and any other such relief deemed appropriate and just under BIPA.
Takeaway: Due to the global impact of the COVID-19 outbreak, the current NHL season has been paused, with fans no longer attending games and potentially being subject to facial recognition scanning. However, this case is one of many such actions brought under the Illinois BIPA law in recent years. As we previously wrote about, Facebook was the subject of a class action suit over its use of “photo tags” on photographs posted by users on its platform, which it ultimately agreed to pay $550 million to settle. Further, as we recently discussed, the U.S. Supreme Court has declined to weigh in on whether plaintiffs bringing BIPA claims in federal court have Article III standing. Given the Supreme Court’s denial of certiorari and BIPA’s broad scope, companies doing business in Illinois or with Illinois residents should ensure that their collection and use of biometric identifiers fully comply with the law or they may similarly risk large privacy settlements.