The use of smart dashcams and vehicle cameras, including those leveraging AI technology, may trigger the next wave of BIPA litigation, according to two cases filed in Illinois this week.

Enacted in 2008, the Illinois Biometric Information Privacy Act, 740 ILCS 14 et seq. (the “BIPA”), went largely unnoticed until a few years ago when a handful of cases sparked a flood of putative class action litigation over the collection, use, storage, and disclosure of biometric information. Many of these cases were filed by plaintiffs who alleged BIPA violations when time management devices called for them to swipe their finger to clock in or out of work. Use of those devices, many plaintiffs claim, resulted in the collection of their fingerprints without the corresponding notice, consent, and other measures required under the BIPA. The focus may be shifting to a new technology: AI-powered dashcams.

Organizations whose employees drive regularly to perform job functions raise several issues – safety, productivity, loss prevention, expense reimbursement, among others. For these reasons, some organizations deploy telematics and related technologies to better manage their fleets. A tool in this process is the vehicle camera, such as dashcams, that are capable of monitoring (and recording) video and/or audio of the driver, passengers, and in some cases persons outside the vehicle. These devices also can track location and how a vehicle is being driven – hard acceleration, sharp turns, lane changing, etc. But, it is the use of AI and machine learning technologies that is raising questions about whether biometric identifiers and/or information are being collected.

According to at least one of these recently filed complaints, the vehicle camera does not just take a traditional video recording of the driver. It uses AI and machine learning technologies to detect driver behavior. More specifically, product descriptions claim the intelligent cameras can identify if drivers are inattentive, distracted, or tired through facial mapping technology which scans the geometry of the face and analyzes the resulting data.

Under BIPA, a “biometric identifier” generally means “a retina or iris scan, fingerprint, voiceprint, or scan of hand or face geometry” and “biometric information,” means “any information, regardless of how it is captured, converted, stored, or shared, based on an individual’s biometric identifier used to identify an individual.

It is unclear at this point whether these complaints have any merit, however, organizations that are using AI-powered vehicle cameras should be reviewing that technology carefully with their vendors to understand the nature and extent of the data being collected. For assistance with understanding the legal framework concerning biometric information, please see our Biometric Law Map

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Photo of Joseph J. Lazzarotti Joseph J. Lazzarotti

Joseph J. Lazzarotti is a principal in the Tampa, Florida, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the…

Joseph J. Lazzarotti is a principal in the Tampa, Florida, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the International Association of Privacy Professionals. Trained as an employee benefits lawyer, focused on compliance, Joe also is a member of the firm’s Employee Benefits practice group.

In short, his practice focuses on the matrix of laws governing the privacy, security, and management of data, as well as the impact and regulation of social media. He also counsels companies on compliance, fiduciary, taxation, and administrative matters with respect to employee benefit plans.

Photo of Jason C. Gavejian Jason C. Gavejian

Jason C. Gavejian is the office managing principal of the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. and a member of the firm’s Board of Directors. He is also a Certified Information Privacy Professional (CIPP/US) with the International Association of Privacy…

Jason C. Gavejian is the office managing principal of the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. and a member of the firm’s Board of Directors. He is also a Certified Information Privacy Professional (CIPP/US) with the International Association of Privacy Professionals.

As a Certified Information Privacy Professional (CIPP/US), Jason focuses on the matrix of laws governing privacy, security, and management of data. Jason is co-editor of, and a regular contributor to, the firm’s Privacy blog.

Jason’s work in the area of privacy and data security includes counseling international, national, and regional companies on the vast array of privacy and security mandates, preventive measures, policies, procedures, and best practices. This includes, but is not limited to, the privacy and security requirements under state, federal, and international law (e.g., HIPAA/HITECH, GDPR, California Consumer Privacy Act (CCPA), FTC Act, ECPA, SCA, GLBA etc.). Jason helps companies in all industries to assess information risk and security as part of the development and implementation of comprehensive data security safeguards including written information security programs (WISP). Additionally, Jason assists companies in analyzing issues related to: electronic communications, social media, electronic signatures (ESIGN/UETA), monitoring and recording (GPS, video, audio, etc.), biometrics, and bring your own device (BYOD) and company owned personally enabled device (COPE) programs, including policies and procedures to address same. He regularly advises clients on compliance issues under the Telephone Consumer Protection Act (TCPA) and has represented clients in suits, including class actions, brought in various jurisdictions throughout the country under the TCPA.

Photo of Jody Kahn Mason Jody Kahn Mason

Jody Kahn Mason is a Principal in the Chicago, Illinois, office of Jackson Lewis P.C. and is a contributor to the Disability, Leave & Health Management Blog. She is an experienced employment law litigator and defends employers before federal and state courts and…

Jody Kahn Mason is a Principal in the Chicago, Illinois, office of Jackson Lewis P.C. and is a contributor to the Disability, Leave & Health Management Blog. She is an experienced employment law litigator and defends employers before federal and state courts and administrative agencies throughout the Midwest.  She also regularly provides advice and counsel to clients regarding challenges relating to the implementation of the ADA, FMLA, and similar state and local laws.

Learn more about Ms. Mason on the Jackson Lewis website.