By: Beth Fegan
In October 2021, a federal court in Chicago granted preliminary approval of one of the largest settlements ever achieved in a consumer BIPA (Illinois Biometric Privacy Act) and privacy class action lawsuit: The $92 million TikTok case.
But aside from TikTok agreeing to pay out such a large amount of money, the TikTok settlement offers a great deal more in terms of preparing consumers for a safer online environment. The litigation also puts other companies who collect biometric data on notice that consumers will demand accountability, disclosures, and protections for their personal-identifying information moving forward.
As Lead Counsel in the TikTok litigation, and a long-term Illinois resident, it is clear to me that this case is important to the future of privacy as we consider facial ID, fingertip swipes, voice recognition, tracking across devices, and other evolutions on the horizon.
A Closer Look at the TikTok Litigation’s Impact and the Historic Settlement
Our TikTok suit claimed that the social media company wrongfully collected users’ biometric information and private data. The suit also claimed that TikTok failed to disclose or obtain consent for the collection, use or storage of this data, why it was collecting the data, who had access, or how long it would be retained — all of which is required by the Illinois Biometric Information Privacy Act and other consumer and privacy protection laws.
In addition to creating the monetary fund for TikTok users, the settlement also required TikTok to initiate a new privacy compliance training program and take further steps to protect its users’ privacy going forward.
A distinction was made for residents of Illinois in recognition of the strong, pro-consumer privacy law enacted in the state, the Illinois Biometric Information Privacy Act (BIPA). BIPA mandates that companies that seek to collect biometric data must first obtain informed consent. Biometric data being, in this case, a user’s facial geometry.
We alleged that TikTok violated BIPA by failing to disclose or obtain consent for the collection of this private, legally protected biometric information thus resulting in the Illinois subclass receiving six pro rata shares of the settlement fund. Members of the nationwide class will receive one pro rata share of the settlement.
Currently, claims are being accepted from TikTok and/or Musical.ly users. The deadline to file a claim is March 1, 2022. If you and/or your minor child used either apps prior to September 30, 2021, you may be entitled to a payment from this class action lawsuit. To learn more and/or to file a claim, click here.
BIPA was passed in the State of Illinois in 2008, and for many years served as one of the only data privacy protection laws in the United States. While progress is being made on this front in other states, Illinois and, more recently, California are the only states with legislation that provides a private right of action. A private right of action legally entitles residents of these two states to enforce their rights if they have been violated, as as we did with TikTok.
Since Apple launched its Face ID feature in the iPhone X in 2017, technology users have become more accustomed to using this sort of personal, private data as a go-to accessibility feature. By 2024, biometric data is expected to be a $45 billion industry, fueled by developments in eCommerce, Artificial Intelligence, and blockchain.
As technology continues to evolve, biometric data is growing as a replacement for usernames and passwords, with many applications now requiring the use of fingerprints and/or facial scans to allow for automatic recognition.
In response to the increase in the collection of biometric data, states are proposing legislation to protect the privacy of residents. In 2021, 27 states had BIPA-like legislation pending at one point. While a handful failed, as of November, 14 proposed bills remained.
Most of the remaining bills propose the enactment of a Biometric Data Privacy Act, or something to that effect, which would hold businesses accountable for the forms by which they collect a consumer’s data and hold it. At the base of each proposed bill is protection of data relating to personal privacy. An example of this is Colorado Senate Bill 190, which passed on July 7, 2021.
While other states continue to work to put protections in place, strides have been made across the U.S. and following the highly publicized decisions on lawsuits surrounding the illegal collection of biometric data, such as the TikTok case, the push for continued progress is likely to gain momentum.
As we head into 2022, it should come as no surprise when biometric data collection continues to remain a pressing topic for legislators across the United States. With bills still pending and undoubtedly more to come, progress to protect the privacy of technology users and enforce transparency in the collection of biometric data is immanent.
How Can I Get Involved?
If you and/or your minor child used the TikTok and/or Musical.ly application, you may be entitled to a payment from the class action lawsuit referenced above. The deadline to file a claim is March 1, 2022. To learn more and/or to file a claim, click here.
About Beth Fegan
Beth Fegan, managing member of FeganScott, served as co-lead counsel on the class action lawsuit. A prominent Chicago-based lawyer with extensive experience in data privacy law, Beth brought established expertise to the case and institutional knowledge of BIPA. Throughout the case, she fought diligently to hold TikTok accountable for the company’s improper user of personal data. She served as an advocate for app users and the parents of minors who used the app.