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 Do you have a smile like Mona Lisa’s? A new feature on Google’s
Arts & Culture app can show you. But not if you live in Illinois.
Google’s Arts & Culture app can now ask users, “Is your portrait in a museum?”
Curious app users can upload selfies, and the feature will match their photos
with paintings in museums across the world.
But the feature does not appear in apps for Illinois-based users, most likely
because of the state’s restrictive privacy law, according to the Chicago
Tribune.
Illinois’ biometric information privacy law
 Illinois’ Biometric Information Privacy Act, or BIPA, was enacted in 2008 to
safeguard biologically derived, or biometric, information, such as fingerprints,
facial images and iris scans. It is the most stringent law of any state
regarding the consent, notice and disclosure procedures private entities must
follow when collecting, storing or using people’s biometric information. The
BIPA gives private parties the right to sue for violations of the act and to
collect the greater of $1,000 or actual damages for each violation negligently
committed, and the greater of $5,000 or actual damages for each violation
recklessly or intentionally committed. Plaintiffs can also collect attorneys’
fees and costs under the BIPA.
The Tribune has reported that the new portrait feature does not appear in Texas
either, which also has a biometric information privacy law. The new feature
appears to be available in Washington state, however, according to The Wall
Street Journal. In 2017, Washington became the third state to pass a biometric
privacy law. Unlike Illinois’ law, only the state attorneys general can enforce
Texas’ and Washington’s statutes. Individual residents can’t sue under them, as
they can in Illinois.
Tech companies, employers sued under Illinois’ biometric privacy law
Although, according to the Tribune, Google declined to comment on why the selfie
feature is not available in Illinois, it would make sense if the company were
wary of lawsuits by Illinois app users. In fact, the company has already been
sued under Illinois’ BIPA over facial templates created through Google’s photo
storage and sharing service, Google Photos.
And Google isn’t alone.
 Since 2015, Illinois consumers have sued under the BIPA for alleged violations
by companies that use facial-recognition technology, such as Facebook,
Shutterfly, Snapchat, Take-Two Interactive Software, Wow Bao and others, as well
as companies that have used fingerprint scans, such as L.A. Tan.
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In 2017, scores of employers were hit with
class-action lawsuits by Illinois employees for alleged violations
of the BIPA, mostly in connection with the use of
fingerprint-operated time-tracking machines. Since July 2017, more
than 30 class-action lawsuits against employers have been filed in
Illinois under the BIPA. Employers that have faced BIPA lawsuits
range from Speedway LLC, a gas station and convenience store chain,
to Paramount of Oak Park Rehabilitation & Nursing Center LLC, a
nursing home, to American Airlines and United Airlines.
Fallout from Illinois’ biometric privacy litigation
Employees, consumers and others have every reason
to be concerned about the privacy and security of their biometric
information. As the General Assembly noted, “Biometrics … are
biologically unique to the individual; therefore, once compromised,
the individual has no recourse, is at heightened risk for identity
theft, and is likely to withdraw from biometric-facilitated
transactions.”
But it remains to be seen what effect the proliferation of BIPA
litigation will have on technological innovation and employment in
the Prairie State. Most of the consumer and employer BIPA cases are
still working their way through the courts, and it is not yet clear
exactly what kinds of harm will suffice to allow a plaintiff to
recover monetary damages under the statute.
The selfie feature of the Google Arts & Culture app is just one
example of a technological advance that can provide consumers with
entertainment – and Illinois’ restrictive law is likely keeping it
away from Illinois consumers.
Other innovations have the potential to make life easier and more
convenient, and Illinois’ law appears to be keeping some of those
away from Illinoisans as well. Nest, for example, has developed a
smart doorbell that uses technology to recognize familiar faces –
which could let a homeowner know that her child has returned safely
from school. But as the Tribune pointed out, they will not be
available in Illinois.
And BIPA litigation against businesses unquestionably drives up
their costs – and makes employing people more difficult and more
expensive. As authors of a Law360 article noted in discussing the
BIPA’s damages provisions, “It is easy to see how damages can become
enormous when aggregated through a class action.” In a case against
a large employer like United Airlines with thousands of possible
employee-plaintiffs, potential damages could total millions of
dollars.
Whether businesses will take extra precautions to comply with the
BIPA, hoping to escape enterprising class-action lawyers and
litigants – or decide hiring people in Illinois is not worth the
expense and hassle – will play out as the cases progress. In a state
with weak employment growth and a workforce dropout problem, this is
not a minor concern.
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