[co-author: Blair Robinson]*

An Illinois appellate court has ruled that Apple’s biometric unlock features, including Touch ID fingerprint scanning and Face ID facial geometry scanning, do not violate the state’s Biometric Information Privacy Act (BIPA). The case involved a group of Illinois residents who alleged that Apple’s Face ID feature impermissibly collects facial geometries from pictures stored in the Photo app on Apple devices. The plaintiff class claimed that Apple violated BIPA by collecting, possessing, and profiting from biometric information without the knowledge or consent of users. According to the complaint, Apple did not have an established retention policy for biometric data and failed to obtain written permission to collect the information.

According to the appellate opinion, Apple never collected, stored, or managed the data collected by Touch ID and Face ID because the biometric data are stored locally on the user’s device. The court distinguished this local storage, which Apple contends is strictly controlled by the user, from cloud-based storage that takes the data out of the user’s custody. BIPA doesn’t define “possession,” so this ruling supports a narrow reading of the law based on the data’s physical storage location.

The court did not address whether technology that stores biometric data locally but still actively “phones home” for updates would change the calculus. For now, tech companies have a tested roadmap for BIPA-compliant security features: store the data locally and encrypt it.

*Non-Lawyer Intern

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