In today’s age of mobile devices and ever-present Internet connectivity, consumers have witnessed the rise of the use of biometric data in lieu of passwords and other means of identification.  As technology continues to rapidly evolve, it has now become common practice for mobile devices to use fingerprints, iris scans, or even full-face recognition as a means of “unlocking” secured devices.

Biometric Data Use Becoming Prevalent As Means for Security

In the past, such use of biometric data was limited to entry into secured grounds or facilities such as high-tech laboratories or classified government buildings.  Today, however, a myriad of gadgets use such data, including, but not limited to, cellular phones, mobile tablets, and laptop computers.

As these devices have seamlessly integrated such use of biometric data into consumers’ daily lives by using them as data security “protection measures,” such use has often failed to be scrutinized closely by consumers or federal agencies alike.  As such, the law lags severely behind in regulating the use, collection, sharing, and storage of such sensitive biometric data.

Considering the Potential for Misuse of Biometric Data

Biometric data such as fingerprints and iris scans are unique to the user and can easily become a means of identifying or tagging users without their consent.  Similarly, the theft or misuse of such data can qualify as identify theft and wreak similar consequences on consumers’ creditworthiness, social security benefits, etc.

Despite this, however, the United States still lacks overarching guidance regarding the use of such data.  This may change, however, with a recent lawsuit that is currently being argued in front of the Illinois Supreme Court.

Family Sues Six Flags Under Illinois’ Biometric Information Privacy Act

Illinois boasts the toughest biometric privacy data law in the country.  It requires companies to acquire consent from consumers before obtaining biometric data such as fingerprints or iris scans.  Under this law, the (Illinois) Biometric Information Privacy Act, consumers may sue companies if they believe their rights have been violated.  In the case at hand, a family has brought suit against Six Flags after the company required scanning of their child’s thumbprint to be used as identifying confirmation in connection with season pass entry.  Six Flags has argued, in their defense, that the use and collection of the child’s thumbprint has not demonstrated any actual harm, and as such, they are not liable under the law.

Illinois Supreme Court Could Set Precedent for Biometric Data Privacy

Many privacy attorneys are following the case closely as the Illinois Supreme Court decision could set precedent for biometric data collection across the nation.  If other states and the federal agencies were to follow suit, this would leave technology giants such as Google, Facebook, and Microsoft open to lawsuits over their current use of biometric data.  For example, Facebook has already faced legal disputes in the past over their photo-tagging tool and its automatic use on its social media site.

In any case, the Illinois Supreme Court decision will be important in terms of setting the tone and precedent for other states, and even potentially federal agencies, to follow suit.

For more information on this topic, visit our Data Privacy service page, which is part of our Technology & Data Practice.

About the Firm:

Klemchuk LLP is a litigation, intellectual property (IP), and business law firm, located in Dallas, TX.  The firm offers comprehensive legal services including litigation and enforcement of all forms of IP as well as registration and licensing of patents, trademarks, trade dress, and copyrights.  The firm also provides a wide range of technology, Internet, e-commerce, and business services including business planning, formation, and financing, mergers and acquisitions, business litigation, data privacy, and domain name dispute resolution.  Additional information about the Technology & Data law firm and its Technology & Data attorneys may be found at www.klemchuk.com.

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