This week a federal court declined to dismiss a putative class action filed by a trucker against a company that provides facial recognition software and sensors to commercial fleets and industrial operations.  David Karling et al. v. Samsara Inc., No. 1:22-cv-00295 (N.D. Ill. 2022).  The Plaintiff asserted claims against Defendant under the Illinois Biometric Information Privacy Act, 740 ILCS § 14/1, et seq. (“BIPA”), alleging that Defendant collected his information from facial scans without notice or release; disseminated that information to third parties; failed to create, disclose and adhere to a written policy for data retention and destruction; and profited from these actions.

First, some background.  Plaintiff worked as a trucker in Illinois for a fleet operations company that was a customer of Defendant.  In 2021, Plaintiff alleged that his employer installed an “AI Dash Camera” in in Plaintiff’s truck.  This technology allegedly contained a feature that automatically performed facial recognition to identify Plaintiff while he was driving by extracting biometric identifiers and comparing those to the stored data.  Plaintiff alleged that he never gave permission for the collection and storage of his biometric data and never signed a written release or had an opportunity to prevent the collection and use of his biometric data.  Plaintiff sought to represent a putative class of similarly situated individuals.

Defendant moved to dismiss, arguing that Plaintiff had failed to plead a cognizable claim under BIPA and raising a preemption defense.  The Court disagreed, finding that the litigation should proceed.

The Court rejected the preemption arguments raised by Defendant that Plaintiff’s invocation of BIPA under the facts of this case would disrupt “a uniform scheme of federal regulation of truck safety technology” and “frustrate Congress’s specific, expressed intent to encourage the use of biometric technology to authenticate truck drivers’ identities in connection with ELD [electronic hours logging device] operation.” This is because, the Court found that Defendant could not identify “a clear and manifest” Congressional purpose to preempt state regulation of “truck safety technology” from the “scattershot nature” of agency statements and proposed rulemaking cited by Defendant, which the Court held “hardly qualifies as a uniform federal scheme to regulate truck safety technology.”  The Court additionally found that Plaintiff adequately plead his claims under BIPA.

Although preemption defenses have been successful in other BIPA litigations, this case is a cautionary note that conflict preemption is not a silver bullet to BIPA claims.  This is particularly so as preemption is “an affirmative defense upon which the defendants bear the burden of proof” and “pre-emption will not lie unless it is the clear and manifest purpose of Congress.”