Blue Otter Polarized Biometrics for Virtual Try-On Illinois BIPA Class Action

Blue Otter, LLC, which does business as Blue Otter Polarized, sells its sunglasses at its website, permitting customers to use a Virtual Try-On feature. But the complaint for this class action alleges that website visitors who use this feature are sometimes residents of Illinois, and that Blue Otter does not fulfill the requirements of an Illinois law, the Biometric Information Privacy Act (BIPA) before collecting the biometrics of Illinois residents so that they can use this feature.

The class for this action is all natural persons whose biometrics were captured by Blue Otter via its Virtual Try-On feature at the www.blueotterpolarized.com website, while they were living in Illinois.

Biometrics are not like other forms of identification, the complaint alleges, because if they are stolen, they are not replaceable. For example, if a credit card or credit card number is stolen, the person can get a new credit card with a different number. But if the person’s fingerprints are stolen, they cannot get new fingers with a different set of prints.

Because of this unique problem with biometrics, the Illinois General Assembly passed BIPA, which sets forth basic requirements for businesses that want to collect, store, or use biometrics. Included in the law’s list of such biometrics is a scan of facial geometry.

Before collecting a subject’s biometrics, a private business must do the following:

• Tell the subject in writing that the biometrics are being collected or stored.
• Tell the subject in writing of the specific purpose and length of time for which the biometrics will be collected, stored, and used.
• Get a written release from the subject.

Businesses who collect, store, and use biometrics must also have a publicly-available written policy about the retention of biometrics, including a retention schedule and guidelines for permanently destroying the biometrics when the original purpose has passed or three years after the subject’s last interaction with the company.

Blue Otter’s Virtual Try-On feature asks customers to have their computer or other device take a picture of their face or upload a picture of their face to the website. “But, unbeknownst to the website user…,” the complaint alleges, Blue Otter “collects detailed and sensitive biometric identifiers and information, including complete face geometry scans, of its users through the Virtual Try-On feature, and it does this without first obtaining their consent, or informing them that this data is being collected.”

It also does not have a publicly-available policy on the retention and destruction of biometrics, the complaint alleges. According to the complaint, then, Blue Otter does not fulfill the requirements of BIPA for businesses that wish to collect, store, and use biometrics.

Article Type: Lawsuit
Topic: Privacy
Tags: BIPA, Facial Scans, Taking/Storing/Using Biometric Data, Your Privacy