The use of biometric and location data has been on the rise for
several years, but the expanded uses of this data must be
reevaluated in light of the associated risks and evolving legal
regimes. Although the use of biometric data is nothing new in
industries such as health and fitness, 2018 saw a broader
range of companies collecting information such as eye tracking
and facial coding to analyze consumers’ reactions to various
types of content (and therefore to predict consumer behaviors).
The use of biometric data has been met with substantial legal
challenges, in particular under the Illinois Biometric Information
Privacy Act (BIPA), which allows for a private right of action for
damages. A January 2019 Illinois Supreme Court decision holding
that plaintiffs need not prove actual injury to prevail under the
BIPA has led to a rash of class actions in Illinois.
