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Illinois Supreme Court Upholds Consumer Privacy Rights

In a landmark ruling of the Rosenbach v. Six Flags Entertainment Corp. case, the Illinois Supreme Court on January 25, 2019, decided to hold that consumers can sue for violations of their privacy under the state’s biometric privacy law, a decision that will likely have broad impact and open the door for consumers to file more lawsuits, according to Justin Kay, a partner at Drinker Biddle & Reath.

The case concerned a 14-year-old boy who visited a Six Flags park on a school field trip. Before receiving his season pass and gaining access to the park, the boy was asked to scan his thumb into a biometric data capture system. In her complaint, the mother of the boy said neither she nor her son were informed of the purpose and length of term for which his fingerprint had been collected. Because neither of them had signed a release for the taking of the biometric information, the suit claimed that Six Flags was in violation of the state of Illinois’ Biometric Privacy Information Act.

“The issue for the court to decide in Rosenbach was whether the Illinois Biometric Information Privacy Act would be a 'gotcha' statute, based on the failure of businesses to use magic words when using technology that incorporates biometrics,” said Kay. “With their ruling today, it is.”

The court concluded, “We hold that the questions of law certified by the circuit court must be answered in the affirmative. Contrary to the appellate court’s view, an individual need not allege some actual injury or adverse effect, beyond violation of his or her rights under the Act, in order to qualify as an 'aggrieved' person and be entitled to seek liquidated damages and injunctive relief pursuant to the Act. The judgment of the appellate court is therefore reversed, and the cause is remanded to the circuit court for further proceedings.”

As a result of the ruling, Kay predicts there will be a push for an amendment to the statute. “Efforts were made several years ago to amend the statute after the first spate of lawsuits against tech companies like Facebook related to facial recognition software, but those efforts failed. Last February, bills were again introduced in both the Illinois House and Senate to rein in the scope of the Illinois law, but they did not advance.

“Just as the Illinois statute served as a model for many of those proposals and was cited by legislators, the Supreme Court’s interpretation here is likely to have an impact on how those laws are drafted.”

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