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Biometric Law Litigation Expands Beyond Social Media
Social media has played an oversized role in lawsuits under state and local biometric privacy laws, including especially the Illinois Biometric Information Privacy Act (BIPA). See, e.g., Thornley v. Clearview AI, 984 F.3d 1241 (7th Cir. 2021) (plaintiffs alleged that defendant used a proprietary algorithm to "scrape" pictures from social media sites such as Facebook, Twitter, Instagram, LinkedIn, and Venmo); K.F.C. v. Snap, No. 3:21-cv-9-DWD (S.D. Ill. June 10, 2021) (plaintiff alleged that two Snapchat features, "Lenses" and "Filters," use scans of facial geometry and violated her rights under BIPA); Vance v. Amazon.com, No. C20-1084JLR (W.D. Wash. March 15, 2021) (plaintiffs alleged that Flickr, through its parent company Yahoo!, compiled hundreds of millions of photographs posted on its platform into a dataset that it then made publicly available to "help improve the accuracy and reliability of facial recognition technology"). Of course, in addition to the litigation expenses and executive time required to defend these suits, settlements can be quite costly. See, e.g., In re Facebook Biometric Info. Privacy Litig., No. 15-cv-03747-JD (N.D. Cal. Feb. 26, 2021) (approving $650 million Facebook biometric information privacy settlement).
Now, a New York City law that took effect in July is likely to significantly expand the range of biometric-related litigation beyond social media companies to a new group of defendants: retail stores, places of entertainment, and food and drink establishments doing business in New York City.
The Essentials
The new city law — groundbreaking and the first of its kind in New York state — was introduced in the New York City Council in October 2018 and finally was adopted on Jan. 10, 2021. In short, it requires that businesses notify customers if they use biometric identifier technology, and it also prohibits them from selling biometric identifier information. The new law has three principal provisions.
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