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Berbix, restaurant chains and Microsoft can’t free themselves from BIPA cases

Another month, another batch of new BIPA lawsuits and court developments for the biometrics and privacy communities to pore over.

Biometric ID software maker Berbix faces a potential class action under the U.S. state of Illinois’s Biometric Information Privacy Act. The case, brought by Saba Mahmood, alleges that she was forced to submit a selfie and a photo of her driving license in order to rent a car under conditions that violate BIPA.

Berbix makes online ID verification software that it sells as a service to various companies. In this case, SilverCar by Audi in Illinois had integrated Berbix’s service in its website.

When the suit was filed, the software was used by SilverCar both to verify identification and to vet for fraud. Berbix subsequently moved for a dismissal of the case (1:22-cv-2456 in the U.S. district court for the northern district of Illinois). The motion was denied last week.

The National Law Review earlier this month said the case is important. It will continue to frame the applicability of the extraterritoriality defense that has been used by BIPA defendants, notably including biometric technology providers, to get out from under the trailblazing law.

In the restaurant sector, executives at a number of chains apparently were watching something other than biometric privacy news.

At least six companies, many of them household names, have been recording and analyzing the voices of Illinois customers calling to interact with the businesses.

According to reporting by trade publication Law360, the firms threatened with a class action are Portillo’s, a popular Chicago-area burger-and-hotdog eatery and fast-casual storefronts Applebee’s, Chipotle Mexican Grill, Noodle & Co., Blaze Pizza and Red Lobster.

The case was filed last week and also names the companies who made and sold the voice service. It charges that none of the outfits received consent to collect voice prints, nor did they explain how the data would be used and managed.

April Guy-Powell et al. v Applebee’s Restaurants LLC et al., case 2022-CH-08365, was filed in Cook County Circuit Court.

The next bit of BIPA news comes from Microsoft. Its lawyers say that the biometric privacy case that they have been fighting should be dismissed because the Illinois court hearing it has no general or specific jurisdiction.

Trade publication Law Street Media reports that U.S. District Court Judge Gary Feinerman sent some plaintiff claims down to state court. What is left before Judge Feinerman should be dismissed, in Microsoft’s eyes.

Uber has used Real Time ID Check, a face biometrics service from Microsoft. Uber drivers living in Illinois claim that they had no choice to but give up personally identifiable data that including a profile facial photo via the service.

On consent was request and none was offered, a BIPA violation.

Maybe so, but the court has no jurisdiction over a Washington-based company, according to Microsoft. It is not known when the judge will rule on the motion.

Last, the lawyers who successfully sued Google for face scans under BIPA, are asking a Cook County Circuit Court to award them fees totaling 40 percent of the $100 million settlement, according to the court-news publisher the Cook County Record.

The plaintiffs said their photos in Google‘s Photos app were improperly scanned and stored. No consent was sought.

Forty percent is reasonable, according to the lawyers, given the six years that they spent litigating the case. Read More

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