We have been following biometric cases in Illinois, including the case against Shutterfly [view related posts]. Late last week, an Illinois federal judge denied Shutterfly’s motion to dismiss the case against Shutterfly alleging that it violates the Illinois Biometric Information Privacy Act when collecting and storing face geometry scans through facial recognition software.

In allowing the case to proceed, the Judge rejected Shutterfly’s argument that photographs are not included in the statutory definition of a biometric identifier, as that term applies to retina or iris scans, fingerprints, voiceprints, or scans of hand or face geometry, and that the statute excludes information from writing samples, signatures, photographs and tattoos.

The Judge found that if the statute is read so narrowly, it would only include an in-person scan of an individual’s face, which she found to be “problematic,” and if the legislature had wanted to narrow the definition to in person scans, it would have done so. She also noted that such a narrow interpretation would not allow the law to adapt to new technology.

Significantly, the Judge found that the plaintiff did not need to show actual damages in order to have standing to make a claim against Shutterfly. She noted that the plaintiff had “credibly alleges an invasion of his privacy” since he had not voluntarily provided his biometric information to Shutterfly. We will continue to watch the developments in this case.