Duane Morris Class Action Review - 2023 - Report - Page 249
It reasoned that under a plain reading of the text, the BIPA explicitly defines "biometric
identifier" to include a "scan of hand and face geometry.” Id. The defendant also
asserted that the plaintiff's claim based on § 15(a) should be dismissed because the
plaintiff only alleged that the defendant captured or collected her biometric data, not that
it possessed it. The court disagreed. It opined that the plaintiff sufficiently alleged that
the defendant obtained access to the plaintiff's uploaded video containing her biometric
data; used its technology to scan the plaintiff's facial geometry from those videos and
analyze those scans; and then developed reports for the plaintiff's employer. Id. at *14.
Finally, the defendant contended that the BIPA violates the First Amendment
because its use of facial geometry scans constituted commercial speech and the BIPA
constituted a content-based restriction of the commercial speech. Id. at *16. The court
explained that Seventh Circuit precedent held that the First Amendment does not give
anyone a constitutional right to information and there exists numerous constitutionallypermissible laws that limit public access to sensitive information. Id. at *19. The court
ruled that since §§ 15(a) and (b) only restrict how an entity may obtain data in the first
place, they did not restrict the defendant’s speech and therefore did not implicate the
First Amendment. For these reasons, the court denied the defendant’s motion to
dismiss.
In Trio, et al. v. Turing Video, Inc., 2022 U.S. Dist. LEXIS 173465 (N.D. Ill. Sept. 26,
2022), the plaintiff, a former grocery store employee, filed a class action alleging that
the defendant’s COVID-19 screening kiosks violated the BIPA. The defendant filed a
motion to dismiss the plaintiff’s claims, and the court denied the motion. The plaintiff
specifically alleged that the defendant sold “products integrated with artificial
intelligence,” including the Turing Shield, a “kiosk that allows Turing’s customers to
screen their employees for COVID-19.” Id. at *2-3. The plaintiff contended that the
Turing Shield screens a user’s temperature through the device’s camera, thereby using
its “artificial intelligence algorithm” to recognize the user based on his or her facial
geometry, and detecting whether the user is wearing a protective mask. The plaintiff
also alleged that data collected through the Turing Shield was transmitted to third
parties who host that data. The plaintiff used the Turing Shield at the start of each
workday as part of the store’s COVID-19 screening process. Based on her use of the
device, the plaintiff claimed that the defendant violated the BIPA by failing to inform her
that the Turing Shield would collect her biometric data; and disseminating her biometric
data to third parties without her consent. The defendant moved to dismiss on three
grounds, including: (i) that the court lacked personal jurisdiction; (ii) the plaintiff’s claims
were preempted by the Labor Management Relations Act; and (iii) the plaintiff failed to
state a claim upon which relief could be granted. The defendant first argued that the
court lacked specific personal jurisdiction because the defendant was a non-forum (i.e.,
California) resident that sold the devices used by the plaintiff to a non-party, Jewel-Osco
(also a non-forum resident), and Jewel-Osco brought the devices into Illinois without the
defendant’s involvement. The court held that the evidence – which showed that
defendant had over 30 Illinois-based customers and had shipped Turing Shields into
Illinois – established that it had the requisite minimum contacts with Illinois to establish
personal jurisdiction. The court next addressed Turing’s argument that the plaintiff’s
claims were preempted by Section 301 of the Labor Management Relations Act (the
LMRA). The plaintiff was represented by a union and subject to a collective bargaining
248
© Duane Morris LLP 2023
Duane Morris Class Action Review – 2023
