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Jewel-Osco parent company argues Illinois biometric privacy law is unconstitutional for excluding government

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Friday, August 30, 2019  |  Article  |  By Cole Lauterbach | The Center Square

Business (10) , Fraud, ID Theft, Con Artists (6)
The parent company of an Illinois grocery store chain claims Illinois’ biometric privacy law is unconstitutional because the government doesn’t have to comply with it. 

Albertsons Companies Inc., which owns Jewel-Osco, has been fighting a class-action lawsuit Bruhn v. New Albertsons Inc. since early 2018 for alleged violations of Illinois’ Biometric Information Privacy Act. The class-action suit claimed the company violated the rules when it required pharmacists to use fingerprints to access a computer system to dispense medication to patients. In a motion filed with the Cook County Circuit Court, attorneys for the company argued the law was unconstitutional because public entities and financial institutions don’t have to abide by it.

“It is facially absurd that an employee of a government contractor working in a government building is not covered by the BIPA, but is covered when working in the non-government building next door,” company attorneys wrote in the motion.

The state law is widely seen as the most robust consumer-protection law of its kind in the nation because it allows people to file lawsuits in court. The law requires a company to get affirmative permission to collect an Illinois resident's biometric information and disclose what the company is going to do with it. A breach of this law is punishable by a $1,000 fine per instance or $5,000 if it's proven the company was knowingly breaking the law. 

One Biometric Information Privacy Act expert said she was skeptical of the company's tactic to have the class-action case tossed.

“This is an extremely complex, and really awkward, procedural way to try and get the class-action thrown out,” said Alexandra M. Franco, a visiting assistant professor of law at the Chicago-Kent College of Law at the Illinois Institute of Technology. She said that a challenge would have likely been brought against BIPA years ago if there were constitutional weaknesses in the statute.

A company proving that a law it has been accused of breaking is unconstitutional is rare, Franco said.

Franco said Albertsons claim of special legislation might not be successful. She said the law exempted government because it wasn't rational to have a state agency such as the Illinois State Police get permission from the people troopers fingerprint. 

“That is the only way to have the technology work for the government,” she said.

Should the ruling go against the grocery chain, it could be on the hook for up to $5,000 for every instance where a pharmacist in one of the company's Illinois-based Jewel-Osco stores used a fingerprint to access computers.

Albertsons also asserted in its motion that the company's decision to require the use fingerprints of didn’t harm the pharmacists. Franco said that was irrelevant because the Illinois Supreme Court ruled in January that Six Flags Great America should be fined under the law even though it may not have monetarily harmed the people whose fingerprints the theme park acquired. 

Both Facebook and Google have been sued for violating the act. Google’s case was dismissed but Facebook’s case may be allowed to move forward.