Biometric technology, used to identify individuals based on their unchangeable and unique attributes such as fingerprints or facial geometry, has become commonplace in modern life. In Illinois, the use of biometric information by private organizations is regulated by the Illinois Biometric Privacy Act (“BIPA”), which came into effect in 2008 as the nation’s first state biometric information privacy statute. BIPA is unique in that it includes a private right of action and provides for recovery of liquidated damages where the statute is violated, which has resulted in plaintiffs bringing steadily increasing numbers of class-action suits under the law. This note examines, in three parts, the current circuit split regarding Article III standing in federal courts that has arisen from BIPA litigation where only procedural BIPA violations are alleged (i.e., where there was a technical violation of the law which purportedly caused no direct harm to the plaintiff). It first explores the history and provisions of BIPA and federal litigation brought under the statute. The note next examines federal jurisdiction over BIPA suits, current Article III jurisprudence, and the history of the circuit split, including how standing has been determined in BIPA suits in the Second, Seventh, and Ninth Circuits. Finally, the note hypothesizes how the Supreme Court might resolve this split in a future ruling, analyzes the impact such a resolution could have, and provides an opinion on the correct resolution.
McMahon, Michael, Illinois Biometric Information Privacy Act Litigation in Federal Courts: Evaluating the Standing Doctrine in Privacy Contexts (June 15, 2021). 65 St. Louis University Law Journal, 2021 Forthcoming, SLU Law Legal Research Paper Series No. 2021-27.