Invoking the Illinois biometrics privacy law, some Facebook users in the Land of Lincoln joined a class action suit against the social media forum, claiming it violated their privacy rights by not obtaining permission from them in advance for its photo tagging system.
Though Facebook agreed to settle the suit, no one was compelled to use the free service, and those who did could set parameters for who could view their posts and how their photos were tagged.
The use of biometrics may be a legitimate concern, even when the acceptance of them is optional. When the use of them is compulsory, pushback is definitely in order.
That’s assuming, of course, that the pushback represents a sincere effort to protect one’s privacy rights, not just an opportunity to secure a lawfare jackpot.
A recent decision by a three-judge panel of the U.S. Seventh Circuit Court of Appeals should discourage such gamesmanship by making it easier for targeted defendants to have cases removed to federal court – beyond the reach of plaintiff-friendly state courts.
The Appeals Court panel overruled a Chicago federal judge who’d decided that class actions over fingerprint scans need not be heard in federal court because they do not represent concrete injuries.
The class action in question was filed in Cook County court against Compass Group, a North Carolina company that provides vending machines that process transactions using fingerprint scanners.
The named plaintiff argued that Compass violated the Illinois biometrics law by failing to secure permission to scan the fingerprints of customers using vending machines installed at their workplaces. She and her attorneys did not assert a concrete injury, however, so as to avoid having their case removed to a less plaintiff-friendly federal court.
The panel concluded that the plaintiff “did not realize that there was a choice to be made and what the costs and benefits were for each option. This deprivation is a concrete injury-in-fact.”
The privacy implications of biometrics need to be addressed now, while we can still opt out. Mercenary lawsuits are not helpful.