Litigation After Biometric Privacy Law Violations: Policyholder Victories and Their Implications

Journal on Emerging Issues in Litigation

PUBLISHED ON: January 26, 2024

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Abstract: States and cities, including New York City, are following Illinois’ lead in enacting biometric privacy laws intended to protect employees’ and consumers’ biometric information. Courts, particularly in Illinois, have cleared up early uncertainty by ruling consistently in favor of policyholders where insurance coverage for violations of the Illinois Biometric Information Privacy Act (BIPA) is at issue. In response, insurance companies are implementing new measures to try to avoid paying for these liabilities. Another emerging area sure to lead to litigation involving privacy and data collection laws is artificial intelligence. As litigation involving privacy laws and artificial intelligence continues to proliferate, will businesses have the same success obtaining insurance coverage for these claims in courts throughout the country as policyholders have in BIPA-related insurance disputes in Illinois? While only time will tell, companies and policyholders should be examining their use of biometrics and artificial intelligence in the present, as well as their current and renewal insurance policies, to ensure adequate protection in the future.

Introduction to Biometrics

Biometric identifiable information (BII) is an individual’s physiological, biological, or behavioral characteristic, including DNA, that can be used to establish individual identity. Biometric information includes imagery of the iris, retina, fingerprint, and face, from which an identifier template, such as a faceprint or voiceprint, can be extracted. Biometrics are used as a more secure, and convenient, way to confirm identification—as opposed to easily hacked passwords. But there is a risk to using biometric data because such information cannot be replaced or changed if stolen. The frequent use of BII has led states to propose and pass biometric privacy laws to protect consumers and employees. Understanding biometric data and the laws designed to protect it is critical because the use of biometrics will only continue to increase.
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