A federal court in Illinois has dismissed a class action suit filed under the Illinois Biometric Information Privacy Act (BIPA), finding that Hyundai did not “collect, capture, or otherwise obtain” biometric data by use of its Forward Attention Warning System (FAWS) installed in certain vehicles. FAWS operates to monitor a driver's eye position and warns the driver via a visual alert on the center display screen when it detects signs of inattention, such as when the driver looks away from the road for too long, closes their eyes, or displays inconsistent driving patterns.
The bottom line:
Even though FAWS monitors drivers’ eye and facial position to detect inattentiveness, the court held that merely offering a tool capable of biometric processing does not amount to biometric data collection under BIPA. This case reinforces that BIPA liability requires more than designing or enabling a system capable of biometric data collection, it requires actual collection or control over the data. The decision aligns with prior rulings where the court held that providing a tool capable of facial scanning is not the same as collecting biometric data, and that BIPA did not apply when data remained solely on a user’s device.
Our advice:
- Companies that deploy biometric technology should consider this business-friendly nuance of BIPA applicability when designing products and services that might implicate biometrics or similar scanning. Counsel therefore face fewer roadblocks enabling tools that may scan physical attributes but don’t capture biometrics compared with those that create and access biometric information.
