Recent class action lawsuits filed against Facebook and Shutterfly are the first to test the Illinois? Biometric Information Privacy Act, which requires organizations to acquire consent prior to collecting a person?s biometric data for commercial purposes.

Although both cases involve biometric capture practices in the social media space, the lawsuits and corresponding Illinois law in question pertain to privacy issues regarding biometric-capture technology, including the organizations that use it for security or sales and marketing purposes.

Within the past three months, plaintiffs have filed class action lawsuits in Chicago?s federal courts against Facebook and Shutterfly for what they view as secretly collecting biometric information in violation of Illinois? Biometric Information Privacy Act, 740 ILCS 14 (West).

The class action case against Facebook has recently been relocated to San Francisco?s federal courts.

The BIPA states that before collecting and storing the subject?s biometric identifier, organizations must inform the individual, in writing, that the data is being collected and/or stored, as well as the length of time the identifier will be stored.

The subject must then provide consent to these practices through a written release form before the organization proceeds to capture any biometric information.

The class action lawsuits allege that Facebook and Shutterfly violated BIPA by collecting facial biometric data without properly abiding by the notice and consent requirements in the act.

Currently, Illinois and Texas are the only states with legislation addressing biometric capture for commercial purposes.

The Texas law is similar to BIPA in that it requires companies to inform and receive consent from the subject before collecting any biometric data. However, it does not specify the exact form the notice and consent must take.

Although there are a handful of other states that have similar legislation pending, including Alaska and Washington, the outcome of Shutterfly?s lawsuit, as well as others that are likely to soon follow, may influence other states as they work towards implementing new privacy laws that address biometric technologies.

As these biometric capture laws continue to gain more attention through high-profile cases like Shutterfly?s and Facebook?s, companies that are currently using biometric technologies in other states will need to stay informed on new legislation to avoid any legal action against them.