Chicago partner Justin Kay was interviewed by columnist Neil Steinberg for an article in the Chicago Sun Times entitled "Want This Cute Robot Dog? Tough − Illinois Law Keeps Sony From Selling it Here." The article ran in the digital and print editions on November 16, 2018. The robot dog employs facial recognition technology and Steinberg posits, “Without going too far into the legal weeds, [the Illinois Biometric Information Privacy Act] basically says if you collect the kind of information [the robot dog] does, you need each person’s ‘informed written consent.’”
Putting things in perspective, Justin explained, “Compliance with this law [is] not particularly complicated. Read through the law, see the types of consent you need. The reason a company would choose not to do business here is they’ve seen lots of people getting sued under the law and say, ‘I just don’t want to deal with that.’ It’s an overreaction.”
While there have been over 100 class action suits filed over the past several years against various companies alleged to have not obtained the proper consent, an upcoming Illinois Supreme Court case will likely determine whether this spate of lawsuits continues. The case—Rosenbach v. Six Flags Entertainment Corporation—will address whether the failure to obtain that consent, standing alone, renders a person “aggrieved.” This is important because it is only an “aggrieved” person that can seek $1,000-$5,000 in statutory damages for each alleged violation of the statute.
The article notes that Rosenbach will be argued on November 20, 2018. “November 20, will be a really, really, really, really, really significant [day] for biometrics,” Justin added. “If the Supreme Court says ‘aggrieved’ means more than you weren’t given the right disclosures, these lawsuits pretty much go away.”