Key Dismissal of BIPA Case Upheld in Federal Court: What SIA Members Need to Know

On June 17, 2024, the U.S. Court of Appeals for the Ninth Circuit affirmed the district court’s judgment concerning the plaintiff’s appeal in Zellmer vs. Meta Platforms, dismissing the case filed over alleged violations of Illinois’ Biometric Information Protection Act (BIPA).

Notably, the Ninth Circuit rejected the original reasoning used by the district court, which had been that BIPA did not apply to non-users of Facebook due to the impracticality of compliance, instead citing an alternative argument that Facebook’s “face signatures” are not “biometric identifiers” or “biometric information” because they cannot, by themselves, be used to identify an individual. The court’s opinion calls out the Security Industry Association’s  (SIA’s) amicus brief in support of this conclusion.

SIA applauds the Ninth Circuit’s decision. If Zellmer’s claims had been upheld, it would have raised the possibility that implementing BIPA-compliant security-related applications of biometric technologies, already difficult in Illinois, could become impossible. SIA supports commonsense protections for biometric data and the responsible, ethical implementation of biometric technologies, but for years BIPA has affected consumers in ways that were never intended, enriching trial lawyers instead of protecting consumer interests and making many beneficial technologies unavailable due its requirements or its ambiguities and overall litigation risk.

SIA also supports underlying legislative reforms to BIPA. Illinois Senate Bill 2979 was transmitted to Gov. J.B. Pritzker on June 14 and awaits the governor’s signature within 60 days, at which point the measure will become law unless it is vetoed. Upon enactment, this legislation will prospectively limit the calculation of penalties for violations to a per-person versus per-instance basis, which is expected to dramatically reduce potential catastrophic cumulative damage awards. SIA will continue to provide updates on BIPA reform as actions occur.