CHICAGO — The question of accountability regarding the misuse of biometric data, such as facial features and fingerprints, is increasingly pressing as technology advances. Illinois has been at the forefront of this debate, with its stringent regulations on biometric data outlined in the Biometric Information Privacy Act (BIPA), put into effect in 2008.
In a notable case that underscored the potency of these regulations, Facebook faced a class-action lawsuit over allegations that its “Tag Suggestions” feature improperly utilized facial recognition technology without users’ consent. The case concluded in February 2021 with a $650 million settlement, marking a significant milestone in consumer privacy law.
However, Facebook is not alone in confronting legal challenges related to biometric data. A recent lawsuit filed against Home Depot in Chicago claimed that the retailer employed facial recognition technology at its self-checkout systems without proper consent or the requisite policies, potentially breaching BIPA regulations.
While Illinois’ biometric privacy laws serve as critical safeguards for personal confidentiality, they have raised concerns about their effectiveness in a rapidly evolving technological landscape. Critics suggest that these laws may be lagging behind developments in the digital marketplace, potentially stifling innovation.
A contentious point of discussion among legal experts and industry stakeholders is whether data infrastructure providers, like data centers and cloud platforms, should carry liability when biometric data is misused. Many advocates believe that without updated regulations, these providers could find themselves unjustly exposed to legal repercussions.
Under BIPA, any private entity that collects or handles biometric identifiers must obtain informed consent before gathering data and must maintain a publicly accessible policy on data retention and destruction. Most notable BIPA lawsuits have targeted end-user companies, such as retailers and social media platforms, without specifically addressing data centers or cloud providers.
Given that these data providers often store encrypted information, they might argue they are not “collecting” or “using” biometric data in the traditional sense. Yet, if a provider offers biometric processing services or fails to protect the data they hold, the potential for litigation increases, paving the way for plaintiffs to challenge the current legal framework.
As the data center industry faces scrutiny for various operational issues, the discussion on liability for biometric data misuse is only likely to intensify. Illinois lawmakers have made strides in keeping regulations current, as demonstrated last year when amendments to BIPA were approved, reducing potential damages and expanding definitions related to consent.
Updating legal frameworks is crucial to keeping pace with fast-evolving technologies. The state must ensure it remains a competitive tech hub while adequately addressing privacy concerns.
While data centers have valid arguments against being held liable for biometric misuse, the complexities of evolving technology and privacy laws continue to present significant challenges.
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