In Zellmer, Inc., no. 18 CV 1880 (N.D. Cal. Mar. Mar. Continue reading to find out more about this and the implications for third-party providers of biometric technology.
Factual Background
Clayton Zellmer, Plaintiff filed suit against Facebook in California federal court in 2018 for violating BIPA’s notice requirements and consent requirements. The lawsuit was related to the photo “tagging”, which allegedly used facial recognition technology. For the purposes of this litigation, Zellmer filed suit against Facebook despite not having an account with the company nor ever using its services. Zellmer represented a class of non-users of the social network site in the litigation.
Facebook, among other challenges, moved for summary judgment on the BIPA claim. It argued that non-users could not establish a Section 15 (b) notice or consent claim against the company.
Non-Users Excluded by Law from Maintaining Cognizable Section 15.b) BIPA Claim
At summary judgment, the court sided with Facebook, noting that Facebook’s reasoning was clear: It would be patently absurd to interpret BIPA as requiring that the company notify and obtain consent from non-users who were, in all practicality, complete strangers to the company and with whom it had no relationship whatsoever.
Additionally, the court noted that Illinois’ well-known “cardinal rule”, which states that courts must determine and implement the intent of the legislature, supported summary judgment for the company. The court stated that BIPA was only applicable in cases where the Illinois legislature had “clearly” intended that it would apply to businesses that have at least some degree of contact with or knowledge of those who are subject to the collection of biometric data. The legislative findings strongly suggested that BIPA was intended to apply interactions among businesses and customers. These examples, along other references to “financial transactions and other business practices” conveyed the intent of the legislature that BIPA only applies where there is at minimum a level of contact that a person has with an entity that may be collecting biometric data. Facebook could not be held responsible for the failure to comply with Section 15(b) because both the plaintiff and the putative classes were completely unknown to it.
It was also noted that “a court presumes the legislature didn’t intend absurd, inconvenient or unjust results.” This further supported summary judgment for the Section 15(b), claim of the plaintiff. The court also emphasized the fact that the Illinois Supreme Court had specifically stated that complying with the law should not prove difficult and that businesses should incur minimal expenses to do so. A company must identify all Illinois non-users on a regular basis to be required to apply Section 15(b). They should also find a way to contact them to give notice and get consent.
The court concluded that this was an unreasonable interpretation of Section 15(b), which would place companies like Facebook in an “impossible” position. This was not consistent with the intent of the Illinois legislature or the Illinois Supreme Court’s decision that BIPA shouldn’t impose unusual burdens on businesses.
Facebook’s claim under Section 15(b), for these reasons, was granted summary judgment by the court.
Takeaways
Although the opinion was only eight pages long, the Zellmer court may have had a significant impact on the future scope of BIPA Section 15.b claims.
The opinion outlines several limitations that could be placed on BIPA notices and consent claims. This may be pertinent to future litigations.
- Section 15(b), which does not require consent or notice from companies, is not applicable to non-users who, for all practical purposes are strangers to the company, and with whom the company has no relationship.
- BIPA, as a whole, is only applicable to situations in which a business has “at minimum some measure of knowing contact” with and “awareness of” people who could be subject to biometric data collection.
- BIPA is only applicable to interactions between businesses and customers, such as at grocery stores, gas stations and school cafeterias.
- The principle of construction states that “a court presumes the legislature did not intend absurdly inconvenient or unjust outcomes” and the Rosenbach court stated specifically with respect to BIPA, “[c]ompliance shouldn’t be difficult” and that expenses incurred by businesses to comply with the law should not exceed $5. Companies cannot be required to give notice or obtain consent if doing so would result in significant monetary and other costs.
The Zellmeropinion is particularly relevant to third-party providers of biometric technology. This is where a strong argument exists to support the claim that vendors are not liable under Section 15(b). The vendor cannot be held responsible for claims if the plaintiffs have a direct relationship to the vendor’s customer but not with the vendor, and the vendor has no level of knowledge about the plaintiffs who submit biometric data to the vendor.
from lawyers.buzz https://lawyers.buzz/recent-bipa-opinion-may-have-significant-implications-on-the-scope-of-section-15b-claims-moving-forward/1270/
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