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Speaker 1: This is Bloomberg Law with June Brussel from Bloomberg Radio.

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Speaker 1: In April of twenty twenty one, Arkansas Republican Governor Asa

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Speaker 1: Hutchinson veto to bill which banned gender affirming treatment for

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Speaker 1: transgender children even with a parents' consent. If House Bill

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Speaker 1: fifteen seventy becomes law, then we are creating new standards

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Speaker 1: of legislative interference with physicians and parents. And the bill

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Speaker 1: did become law after the State House and Senate voted

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Speaker 1: to override his veto, and Arkansas became the first state

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Speaker 1: to ban physicians from administering hormone therapy to transgender youth

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Speaker 1: younger than eighteen. Other states followed with similar bands enacted

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Speaker 1: in Alabama, Arizona, South Dakota, Tennessee, in Utah, and now

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Speaker 1: lawmakers in more than two dozen other states are weighing

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Speaker 1: legislation restrict or band access to gender affirming medical care

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Speaker 1: for transgender youth, prompting legal challenges from LGBTQ groups that

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Speaker 1: argue the bills or discriminatory. Joining me is Sasha Booker,

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Speaker 1: senior attorney with LAMB Illegal. I would like you to

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Speaker 1: start by explaining what exactly is meant by gender affirming

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Speaker 1: care what it encompasses. One thing to unpack immediately when

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Speaker 1: talking about gender affirming care is that it's not, you know,

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Speaker 1: some kind of care that isn't already regularly provided to

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Speaker 1: almost anyone, you know, whether you're talking about hormones. You know,

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Speaker 1: we all know someone who is kicking testosterone because maybe

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Speaker 1: you know, you're an older guy and you want to

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Speaker 1: boost here, or you need it for other medical reasons.

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Speaker 1: There's just a whole range of reasons why, you know,

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Speaker 1: people undergo hormonal treatment. You know, one of the treatments

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Speaker 1: is puberty blockers, you know, which is something that's used

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Speaker 1: for a number of conditions, like precocious puberty. But really,

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Speaker 1: you know, what it boils down to is that this care,

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Speaker 1: you know, it's not just automat addically granted to anyone

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Speaker 1: that asks for it. It's a pison that's made between

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Speaker 1: a patient and a physician and their family looking at

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Speaker 1: the best options on how to treat gender dysphoria, which

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Speaker 1: is a serious medically recognized condition. You know that if

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Speaker 1: denied that care, you know that patient's going to experience.

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Speaker 1: According to the American Medical Association, and you know, other

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Speaker 1: healthcare organizations really serious consequences, including suicidal ideation and debilitating

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Speaker 1: depression if they're denied that treatment. That's just something that's

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Speaker 1: been found by courts and by medicine across the board

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Speaker 1: for decades now. So it's hard to give you a

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Speaker 1: concrete definition because it's the same care that everybody gets,

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Speaker 1: just that it's the care that's provided to treat gender

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Speaker 1: disapoint Can you tell us generally about these laws or

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Speaker 1: bills that restrict or ban access to gender affirming medical

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Speaker 1: care for transgender youth? How do they differentiate them from

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Speaker 1: the treatment given to other youth, for example, let's say

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Speaker 1: for precocious puberty. Well, I mean they're not in the

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Speaker 1: sense that they're not, you know, making a distinction. They're

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Speaker 1: just picking on trans kids and saying, look, you can't

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Speaker 1: have this care, and they even clarifying some of the

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Speaker 1: bill language that you know, sher will continue to provide

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Speaker 1: it for other conditions, but for you and your family,

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Speaker 1: we're going to absolutely deny it. So it's there's these

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Speaker 1: bills that you know, for all of the lift service

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Speaker 1: that's given to parental rights, their bills that drip those

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Speaker 1: rights from parents and say that you know, we the

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Speaker 1: government without an ounce of medical training. In most cases,

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Speaker 1: you know, feel like we know better than decades of

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Speaker 1: research and best practice medical care, and are going to

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Speaker 1: decide that we're going to create this categorical rule that

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Speaker 1: says that anyone seeking a specific kind of care, say

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Speaker 1: puberty blockers, we're going to categorically deny that to trans kids,

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Speaker 1: you know, because we think we know better. And you know,

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Speaker 1: oftentimes you have sat through a lot of these different

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Speaker 1: hearings and when when pressed on these questions, you know,

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Speaker 1: they will concede that they don't have the medical background

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Speaker 1: or training, or you know, wave off the fact that

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Speaker 1: every preeminent healthcare organization in the country that looked at

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Speaker 1: the question of whether this healthcare is politically effective, as

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Speaker 1: you know, resoundedly clarified that it does. Whether it's the

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Speaker 1: American Medical Association and the American Psychiatric Associations, American Academy

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Speaker 1: for Pediatrics. You know, the list is endless. And as

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Speaker 1: opposed to that state legislators that is deciding to put

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Speaker 1: theirselves in the shoes of parents and families in the

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Speaker 1: medical community and decide what's best. And it's just absolutely

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Speaker 1: infuriating that they were able to do this. Of course,

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Speaker 1: it's one thing to you know, provide those kinds of

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Speaker 1: arguments in a state legislative hearing where you feel like

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Speaker 1: you've got the advantage there by not being rebutted, you know,

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Speaker 1: with the science and instead of stigma. But you know,

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Speaker 1: when the rubber hits the road, and in these cases

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Speaker 1: moved to litigation, the courts have, even in very conservative

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Speaker 1: parts of the country like Arkansas and Alabama, has said

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Speaker 1: that just doesn't wash here. You're not turning to best

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Speaker 1: practice medicine, you're not turning to science. You're don't have

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Speaker 1: a basis for these arguments. And you know, have thankfully

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Speaker 1: enjoined those really dangerous attempts to strip parents and kids

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Speaker 1: of the best care that they can get. These bills

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Speaker 1: and laws, do they target the parents, the children, the

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Speaker 1: doctors with civil or criminal penalties even yeah, oh yes,

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Speaker 1: all three. There's you know, and well, you know, mostly

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Speaker 1: it's the doctors, you know, because the aim is to

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Speaker 1: chill the availability of care altogether, to scare people, you know,

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Speaker 1: and that's I think that bears repeating too. And there

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Speaker 1: was a hearing that I watched a while back, and

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Speaker 1: you know, one of the medical professionals that was providing

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Speaker 1: testimonies basically told the letstate legislative hearing to stop scaring people,

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Speaker 1: because that's what this really boils down to. These are

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Speaker 1: really scared tactics, and that's what a lot of these

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Speaker 1: bills do. They seek to criminalize providers. You know, they're

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Speaker 1: following the hippocratic oaths, and they're following you know, best

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Speaker 1: practice medicine, and they're looking to the science, you know,

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Speaker 1: and that again is clearly shown that these this care

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Speaker 1: is clinically effective, and the states that are passing these

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Speaker 1: laws are speaking to drip that right of them and

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Speaker 1: then to actually punish them not just with civil penalties,

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Speaker 1: but with criminal penalties as well, you know. And a

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Speaker 1: lot of them have a county hunter provisions that verify

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Speaker 1: that if a clinician, you know, seeks to refer someone

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Speaker 1: to another state for care, that they could also be

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Speaker 1: on the hook for liability. So it's clearly a you know,

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Speaker 1: ideologically driven efforts to be If you look at the

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Speaker 1: landscape here, it's it's not just healthcare, it's sports bands,

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Speaker 1: it's bathroom bands. It's absolute shameless targeting of the most

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Speaker 1: vulnerable kids that we have in our school transgender kids,

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Speaker 1: and npinary kids. You know, it's just absolutely reprehensible. Eleven

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Speaker 1: states have bills or laws with criminal penalties, and I

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Speaker 1: was surprised that the blue states of New Jersey and

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Speaker 1: Hawaii are included in that. Those are bills that are

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Speaker 1: going to move forward. But you know, I think that

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Speaker 1: this has been a concerted effort by you know, th

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Speaker 1: folks you know on the you know far right that

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Speaker 1: are speaking to you know, influence you know, state legislators

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Speaker 1: wherever they can, and you know in any and even

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Speaker 1: in the most conservative parts of the country like in

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Speaker 1: Texas and Oklahoma or wherever you have there. I mean,

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Speaker 1: there's there's you know, progressive folks that you know trying

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Speaker 1: to move forward, you know, legislation protecting folks. So, you know,

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Speaker 1: I think that you know, the language in those bills

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Speaker 1: is it just demonstrates, you know, the rabid, you know

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Speaker 1: approach that a lot of these folks have taken. They're

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Speaker 1: not even attempting to moderate their views to you know,

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Speaker 1: make a piece of legislation viable in those places. To me,

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Speaker 1: it just demonstrates, you know the viciousness of these attacks.

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Speaker 1: At least three of the states, Oklahoma, Virginia, and South

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Speaker 1: Carolina are targeting people up to the ages of twenty

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Speaker 1: one and twenty six. Do you know how they justify

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Speaker 1: that leap. I don't know how they justify any of

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Speaker 1: this tork Dune. It's unbelievable. I mean to me, that

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Speaker 1: just again underscores that this isn't about healthcare, this isn't

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Speaker 1: about sports. This is about a view of the world

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Speaker 1: that would erase transgender people altogether. And it doesn't end

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Speaker 1: with healthcare, and it won't end at twenty six to one,

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Speaker 1: end a thirty six. It's just an ongoing effort. You know.

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Speaker 1: It's just so important, you know that people recognize that

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Speaker 1: this is the partisan attack and it's it's about targeting

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Speaker 1: a specific vulnerable population in our country has seen this before,

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Speaker 1: you know, with different vulnerable populations, and we will prevail.

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Speaker 1: But it's just a really dark moment, especially even when

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Speaker 1: these bills don't move forward, they have an impact. They

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Speaker 1: have a mental health impact on again some of the

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Speaker 1: most vulnerable kids out there, and it's just, you know,

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Speaker 1: really sad to see stay legislator get swept up in this,

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Speaker 1: you know, almost trans panic and introduce these bills that

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Speaker 1: target and seek to cause great harm to these kids,

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Speaker 1: and you know, unfortunately that rhetoric does get to trans

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Speaker 1: kids and impacts their mental health. We know that because

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Speaker 1: we've seen spikes. There's a you know, a great resource

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Speaker 1: available for folks called the trans Lifeline, and they track

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Speaker 1: the number of calls they get, and whenever these kinds

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Speaker 1: of bills are introduced, whether they're viable or not, they

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Speaker 1: see a spike. I think it's just an obvious inclusion

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Speaker 1: that this is because of the way in which this

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Speaker 1: rhetoric is really ramped up in the last few years,

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Speaker 1: that it's become you know, any divisive cultural or I

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Speaker 1: guess these folks that are engaging in this war seem

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Speaker 1: to forget that there are victims and there are real

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Speaker 1: people on the other side of this, and there's a

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Speaker 1: lot of harm and damage being done. You mentioned Arkansaw.

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Speaker 1: What argument did the acl you use there to challenge

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Speaker 1: the law. One of the primary arguments is the constitutional

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Speaker 1: protection against providing an equal protection you know, the equal

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Speaker 1: protection clause. The bills in a lot of cases clarify

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Speaker 1: that again that the care that they're seeking to trip

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Speaker 1: from trans kids they will freely provide to other kids,

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Speaker 1: So they're not making any pretense that this is about

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Speaker 1: targeting trans kids in particular, you know, a politically unpopular,

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Speaker 1: vulnerable population, and the failure successfully made legal arguments to

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Speaker 1: that effect, you know, into equal protection clause. But I

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Speaker 1: think really what it boils down to is, but I've

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Speaker 1: just been going over earlier and that the courts are

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Speaker 1: thankfully rigorate and are paying attention to detail and things

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Speaker 1: that you can get away within a legislative hearing don't

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Speaker 1: wash there. And I think the courts in Arkansas in

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Speaker 1: Alabama and that will probably see, you know, as a

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Speaker 1: result of this legislative session as well, they have seen

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Speaker 1: through that, you know, the charade. You know, they know

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Speaker 1: that decisions that are being made here aren't being made

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Speaker 1: in the best entry of the state or of people

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Speaker 1: in Arkansas, and they're being made based on animals. Otherwise

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Speaker 1: you would be able to provide the scientific evidence that

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Speaker 1: would support your view that this carrey danger. And the

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Speaker 1: courts have looked at the arguments that are being put

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Speaker 1: forward showing that no, you know, this carrey is medically necessary.

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Speaker 1: It's held the same carrits provided to other kids, you know,

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Speaker 1: on a daily basis, and they're not going after precocious puberty,

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Speaker 1: and I'm trying to strip puberty blockers from those kids.

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Speaker 1: They're just going after trans kid And I think that

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Speaker 1: the courts and really seen through that, and I'm confidence

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Speaker 1: that that will continue to get the case. So in Arkansas,

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Speaker 1: that law, the so called Safe Act, was enacted over

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Speaker 1: the veto of its Republican governor. Yet the Arkansas Attorney

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Speaker 1: General said his office will continue to defend the acts constitutionality.

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Speaker 1: What stage are they at? Was it just a preliminary

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Speaker 1: injunction and now they're going for a permanent rule, you know,

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Speaker 1: And I just you know, I can't let this go

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Speaker 1: without pointing out that folks are probably familiar with the

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Speaker 1: news clip of John Stewart formally from The Daily Show

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Speaker 1: interviewing the Attorney General's office and you know, really call

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Speaker 1: them out on the junk science they were putting out

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Speaker 1: with regard to the care and he responded to, you know,

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Speaker 1: the junk science points that that's an incredibly made upsistic,

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Speaker 1: you know, and that's what the courts are saying as well.

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Speaker 1: But to answer your question, what happened in Arkansas that

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Speaker 1: the court you know, yes, you're right, and it just

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Speaker 1: shows to me of all the priorities that the state

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Speaker 1: legislature could be focused on, you know, whether it's improving

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Speaker 1: schools or fixing postles in the roads. I don't know,

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Speaker 1: there's like seems like there's a million things to do

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Speaker 1: other than you know, really focus in on this vulnerable

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Speaker 1: lessons too percent of the population and pass these really

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Speaker 1: vicious laws. But it just shows you the panic apparently

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Speaker 1: that that you know, involved with these these moves to

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Speaker 1: try to strip these protections. You know that they would

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Speaker 1: override Governor Hutchinson's veto and uh and and thankfully you know,

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Speaker 1: the court you know it did issue a preliminary and

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Speaker 1: juncts and saying like the state back or whatever you

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Speaker 1: want to call it, you know, we call it the

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Speaker 1: attack trans Kids Built. Um was enjoined and it was

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Speaker 1: appealed by the Attorney Generals US to the a Circuit

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Speaker 1: Court of Appeals, and the Circuit Court of Appeals, you know,

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Speaker 1: again looked at the science and said, you know, frankly, no,

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Speaker 1: this is that doesn't watch here, you know um and

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Speaker 1: you know the shows science over stigma and upheld them

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Speaker 1: the injunctions, so it's still in place. There was a

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Speaker 1: trial um last fall and we were expecting a decision

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Speaker 1: I believe sometimes soon, but I would check in with Afia,

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Speaker 1: you folks who have litigated this case masterfully. Also, it's

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Speaker 1: not just Arkansas. There was another healthcare band past in

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Speaker 1: Alabama last year and similarly, the court you know it

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Speaker 1: needs are very as folks know, conservative parts in the country.

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Speaker 1: We're not talking about Hawaii here, and the court looked

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Speaker 1: at the evidence and said, no, we're gonna I'm not

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Speaker 1: gonna let this dangerous piece of legislation that's not grounded

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Speaker 1: in science and clearly ideologically driven go into effect and

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Speaker 1: target and harm real human beings, real people. So thankfully

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Speaker 1: that case was enjoined as well. Of course, these you know,

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Speaker 1: are going to continue to move through the process, but

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Speaker 1: I'm grateful that they won't go into effect, you know,

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Speaker 1: while litigation proceeds, so these folks can obtain the care

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Speaker 1: at these parents and family and providers can give the

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Speaker 1: best care that they can for these folks and these

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Speaker 1: really difficult parts of the country. So does the ACLU

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Speaker 1: or LAMB illegal intend to fight each of these laws

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Speaker 1: if they're passed. We're going to defend trans kids and

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Speaker 1: you know, every day of the week. Three sixty five

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Speaker 1: days a week. You know, we have to make smart,

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Speaker 1: strategic decisions, you know, and that's just something that's developing.

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Speaker 1: And we certainly will fight until every trans kid is

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Speaker 1: able to access the care that they need and deserve.

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Speaker 1: And that's going to be what we're gonna do, you know,

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Speaker 1: till the end, and I know we will prevail. This

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Speaker 1: is again the mirrors you know, the civil rights battles

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Speaker 1: that we've had in this country unfortunately, over and over

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Speaker 1: and over again, you know, when they're talking about marriage

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Speaker 1: equality or non discrimination protections. It's just the same story

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Speaker 1: over and over again. And you know, I am confident

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Speaker 1: that we will prevail. And again, you know, I'm really

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Speaker 1: excited about the fact that the courts have seen through,

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Speaker 1: you know, the charade and understand that this is care

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Speaker 1: that is medically necessary. They're turning the science, you know,

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Speaker 1: rather than stigma in reviewing these challenges. There are also

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Speaker 1: bills that band transgender girls from playing on sports teams

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Speaker 1: that match their gender identity. Have there been legal fights

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Speaker 1: against those bills as well if they progressed to any

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Speaker 1: reportable point? Um, yeah, And again in response to that

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Speaker 1: is I'm going to make the larger point, you know,

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Speaker 1: once more, that this really demonstrates the fact that, you know,

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Speaker 1: whether it's healthcare or sports, or bathrooms or names and pronouns,

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Speaker 1: these attacks are across the board. It's just absurd to

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Speaker 1: me that, you know, that day legislatures would invest so

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Speaker 1: much time and money and effort on such a vulnerable population,

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Speaker 1: you know, which is less than two percent of the

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Speaker 1: population and target these kids when there are so many

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Speaker 1: other important priorities, you know, making sure that people are

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Speaker 1: able to get the healthcare they need, and making sure

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Speaker 1: that the schools are meeting their kids needs and can

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Speaker 1: sure people have food on the table. It's just unbelievable

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Speaker 1: that they've chosen this is the thing that they feel

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Speaker 1: is the most important for them to get done. But yeah,

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Speaker 1: so there are a number of challenges that are working

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Speaker 1: there through the courts to make sure that kids can participate.

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Speaker 1: You know. One of them is the case that you know,

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Speaker 1: we're working on involving a transgender girl in the state

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Speaker 1: of West Virginia who is seeking to play on our

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Speaker 1: girls cross country team, and that case is working its

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Speaker 1: way up to the four circuit. You know, we're working

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Speaker 1: on a case in Tennessee for on behalf of the

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Speaker 1: transgender boy who just wants to play golf on the

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Speaker 1: boys team and is being told by the state of

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Speaker 1: Tennessee that he can't. And there's also a couple of

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Speaker 1: other cases that have been filed, you know, challenging those

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Speaker 1: as well. But again, it's not about sports, So this

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Speaker 1: is about targeting trans kids. Thanks Sasha. That's Sasha Bookert,

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Speaker 1: Senior attorney was Lambda llegal companies in Illinois that collect fingerprints,

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Speaker 1: face scans, and voice prints without proper consent face the

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Speaker 1: risk of millions of dollars in penalties. After the state

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Speaker 1: High courts ruling in a case against Whitecastle, a former

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Speaker 1: Whitecastle manager alleged that the Hamburger chain violated her biometric

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Speaker 1: privacy rights by collecting fingerprints without her written consent every

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Speaker 1: time she clocked in and out of the timekeeping system.

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Speaker 1: The Illinois Supreme Court found four to three that a

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Speaker 1: separate claim for damages can arise each time a business

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Speaker 1: fails to seek permission to gather biometric data from workers

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Speaker 1: or consumers, or fails to disclose retention plans for that information.

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Speaker 1: Since the state's enactment of the Biometric Information Privacy Act

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Speaker 1: in two thousand and eight, It's been viewed by defense

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Speaker 1: lawyers as a boon to the plaintiff's class action bar

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Speaker 1: which has filed litigation against big tech and social media

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Speaker 1: companies airlines, railroads, retailers, grocery stores, restaurants, and more. Joining

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Speaker 1: me as privacy specialist, James, a partner at Thompson Coburn

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Speaker 1: start by, you know, explaining what the issue was before

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Speaker 1: the Illinois Supreme Court. There's been several ambiguous issues that

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Speaker 1: have been litigated under the Biometric Information Privacy Act, and

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Speaker 1: one of the early ones that was addressed in a

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Speaker 1: case called Rosenbach was who can bring an action under

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Speaker 1: BIPPA to utilize the liquidated damagist provisions? Is an aggrieved

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Speaker 1: person as the law defines it. And then the issue

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Speaker 1: that came up in Whitecastle was whether or not each

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Speaker 1: collection of a biometric can result in its own claim

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Speaker 1: as far as those liquidated damagist provisions that are concerned. So,

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Speaker 1: if let's say an employer uses as a biometric time

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Speaker 1: clock and they're they're sued by the employee for violations

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Speaker 1: of PIPPA, they you say that the same thumb print,

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Speaker 1: is it a claim for just that first collection of

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Speaker 1: the thumb print, or is it for every collection from

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Speaker 1: the first to the last, Because each violation it can

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Speaker 1: be a thousand dollars liquid data damages or if it's

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Speaker 1: a knowing or reckless violation, five thousand dollars. So obviously

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Speaker 1: this makes the potential liability several times greater in magnitude.

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Speaker 1: I've never done anything about on the what is the

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Speaker 1: purpose of Illinois Act? I mean, do the employees at

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Speaker 1: Whitecastle know? Don't they know that they're getting their fingerprints scanned?

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Speaker 1: What's the point of the act. The idea was that

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Speaker 1: biometrics are considered just a somewhat different type of sensitive

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Speaker 1: information than others, largely in part because they can't be changed.

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Speaker 1: Whereas you can you can change a password, you can

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Speaker 1: change an account number, you can't change a thumbprint. You

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Speaker 1: can't change in Irish scant and so the onner like

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Speaker 1: lature wanted to make sure that people were notified and

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Speaker 1: give their consent for those those collections. And so actually

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Speaker 1: many years ago it was enacted, I think in two

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Speaker 1: thousand and eight. Technically it was the second state biometrics

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Speaker 1: law after Texas, and actually one of my colleagues here

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Speaker 1: at the firm John Cullerton was in the only Senate

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Speaker 1: and was president, and the one I sent it soon

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Speaker 1: after the law was enacted, and so he could tell

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Speaker 1: you that they just wanted people to be notified that

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Speaker 1: this was happening and into some way to give their consent,

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Speaker 1: so to scourage the surreptitious collection of this kind of information,

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Speaker 1: and to have some incentive for employers or others to

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Speaker 1: get that kind of consent in place. But the intention

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Speaker 1: wasn't what we have in place now, which is that

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Speaker 1: this has become just a hot bit of litigation with

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Speaker 1: absolutely enormous potential damages for a company, when the plant

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Speaker 1: don't have to show any actual damages at all. Why

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Speaker 1: did the majority decide that you need consent I guess

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Speaker 1: for each and every finger swipe or face scan. Here

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Speaker 1: they were really focusing on the damage issue. Theoretically, you

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Speaker 1: could certainly do one consent that would cover all collection.

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Speaker 1: But if you don't get that appropriate consent, whether it's

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Speaker 1: once or each time, could you have a claim for

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Speaker 1: each one of those? And so here the Millinary Supreme Court,

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Speaker 1: the majority is saying, and I would notice it it's

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Speaker 1: a four three majority. So it was contentious that although

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Speaker 1: they're sympathetic that this could result in extremely large damages,

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Speaker 1: that the way of the law is written, that this

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Speaker 1: is the conclusion they had to come to the dissent

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Speaker 1: or for Democratic appointed justices in the majority, one Democrat

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Speaker 1: that chie judge and two Republicans in the descent, that

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Speaker 1: the legislature could not have intended this kind of result,

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Speaker 1: to have this kind of enormous damage potential. The damages

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Speaker 1: are discretionary, so you could have a case without any

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Speaker 1: damages at all. Yeah, And for strategic reasons, a lot

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Speaker 1: of plaintiffs don't plead any actual damages from it to

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Speaker 1: avoid having cases removed to federal court. It's sometimes more

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Speaker 1: advantageous to not played any So, yeah, you can have

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Speaker 1: a case where someone's pleasing that they were not actually

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Speaker 1: damaged at all based on the violation of PIPPA, but

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Speaker 1: they want to utilize that thousand dollars per violation statutory

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Speaker 1: Are there some huge awards out there that have already

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Speaker 1: been put in place. There was a case against a

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Speaker 1: railroad freight railroad company a few months ago. It was

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Speaker 1: a very large verdict and we're in somebody just at

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Speaker 1: the start of this because we're working through several of

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Speaker 1: the issues. A lot of cases right now have been settled,

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Speaker 1: and we've seen certainly settlements many in the millions of dollars,

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Speaker 1: tens of millions of dollars. Those are willing to go

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Speaker 1: up considerably after the ruling and Whitecastle. As we move

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Speaker 1: forward to cases that are currently pending are going to

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Speaker 1: be filed, I think we can expect that they're going

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Speaker 1: to be a settlements in those cases because this certainly

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Speaker 1: provides a lot more leverage to Plainiffs Council in those settlements.

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Speaker 1: And so I think we're going to see settlements that

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Speaker 1: are going up considerably from what we've seen in the past.

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Speaker 1: And is it mostly employees who are suing under this law, Yes,

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Speaker 1: Andswer That's one of the things that the law is

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Speaker 1: not written specific to employees. But the vast majority of

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Speaker 1: the cases have been filed to this point have been

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Speaker 1: involving employees and in disproportionately involving biometric time clocks. So

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Speaker 1: is it likely that in light of this, employers will

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Speaker 1: just find another way to track when their employees come

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Speaker 1: in and leave or go back to the old time stamps.

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Speaker 1: I don't know, it is quite possible. I mean I

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Speaker 1: think obviously from my perspective, I'm a compliance attorney, so

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Speaker 1: I help clients get into compliance and get the contents

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Speaker 1: they need, and so it makes it all the more

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Speaker 1: important to do that. I mean, I think everybody has

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Speaker 1: to do a risk analysis. Is using that biometric time

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Speaker 1: clock worth it for me? You know? Or can I

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Speaker 1: address the risk appropriately with getting a good consent? I mean,

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Speaker 1: I'd also know the focus to this point has all

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Speaker 1: been on failure to obtain proper consent, the prior written

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Speaker 1: consent that DEPPER requires. There are several other requirements ENDPA

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Speaker 1: about the use of biometric information, about how how it

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Speaker 1: can be stored, how protected. At this point, I think

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Speaker 1: the focus has been on noticing content just because that's

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Speaker 1: in some ways the easiest to prove. But if if

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Speaker 1: we you get better consent in place, we may see

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Speaker 1: some of those other issues get litigated down the road.

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Speaker 1: By doing the scan, the fingerprint scan or the face scan,

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Speaker 1: isn't there an implied consent because you're doing it and

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Speaker 1: you know you're doing it. The issue is that the

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Speaker 1: language of PIPPA as you need to have prior express

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Speaker 1: written consent, and so that makes it difficult. Even if

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00:24:27,960 --> 00:24:31,960
Speaker 1: the average person would realize that that is being collected

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00:24:32,000 --> 00:24:37,040
Speaker 1: about them, and they've repeatedly provide the biometric It still

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00:24:37,080 --> 00:24:40,560
Speaker 1: says you have to get consent. So do you think

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00:24:40,600 --> 00:24:45,600
Speaker 1: as a compliance officer that an employee signing a written

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00:24:45,680 --> 00:24:50,280
Speaker 1: consent form, you know, a lawyered written consent form, once

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00:24:51,400 --> 00:24:56,320
Speaker 1: can state that anytime I scan my fingerprint, I give consent.

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Speaker 1: Would that work or would you think that each and

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00:24:58,680 --> 00:25:03,479
Speaker 1: every time they you have to have a consent. You

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00:25:03,520 --> 00:25:10,000
Speaker 1: can never give that iron cloud guarantee. But I think

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00:25:10,040 --> 00:25:13,679
Speaker 1: if you worried the consent properly, you make it clear

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Speaker 1: that the biometric identifier will be collected repeatedly over time.

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00:25:20,440 --> 00:25:26,080
Speaker 1: You make it it's conspicuous, so the person knows clearly

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Speaker 1: what they're consenting to. I think you could do it

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Speaker 1: with a single consent. It'd be pretty impractical to do

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00:25:32,359 --> 00:25:37,120
Speaker 1: it each time. I certainly hope that courts would be

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00:25:38,240 --> 00:25:41,040
Speaker 1: would recognize that, and we have a lot of other

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00:25:41,400 --> 00:25:47,199
Speaker 1: contexts where a single consent can cover multiple actions, So

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Speaker 1: I would certainly hope that would take care of it here.

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Speaker 1: A Whitecastle spokesman said, we're reviewing our options to seek

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Speaker 1: further judicial review given the strong dissenting opinion. What were

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Speaker 1: their judicial review were they thinking about? This is the

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Speaker 1: highest court in Illinois, right sure, and I'm guessing they

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Speaker 1: probably need There are other legal points to be addressed.

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Speaker 1: I mean, I think that there's an argument to be

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00:26:13,480 --> 00:26:19,399
Speaker 1: made that there are constitutional guarantees on excessive fine, and

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00:26:19,960 --> 00:26:24,080
Speaker 1: you could certainly make the argument that this portion of them,

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Speaker 1: in light of the finding at Whitecastle, is unconstitutional because

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Speaker 1: it violates those constitutional guarantees against successive fine, giving what

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00:26:32,880 --> 00:26:36,399
Speaker 1: we've seen them from the court. Now and more states

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00:26:36,400 --> 00:26:39,159
Speaker 1: are considering these kind of laws. There are sort of

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Speaker 1: two models of state laws out there. There are three

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00:26:43,040 --> 00:26:48,159
Speaker 1: biometric privacy laws existing. You have the Illinois law, which

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00:26:48,560 --> 00:26:51,879
Speaker 1: has this statutory damage's provision from its a private right

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Speaker 1: of action. You have somewhat similar laws that were enacted

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Speaker 1: in Washington State in Texas that have similar substantive provisions

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Speaker 1: but don't have a private right of action and don't

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Speaker 1: have the statutory damage this revision. And so some states

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00:27:05,840 --> 00:27:08,760
Speaker 1: are looking to the Texas or Washington model. Some states

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Speaker 1: are looking at Illinois as they consider biometric privacy law.

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Speaker 1: I know that in New York State they're considering a

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Speaker 1: law that's very very similar to when Illinois has done.

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00:27:19,640 --> 00:27:24,200
Speaker 1: Missouri and I think Massachusetts all considering laws that look

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00:27:24,200 --> 00:27:28,000
Speaker 1: a lot like Illinois. So if you adopt very similar

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00:27:28,080 --> 00:27:32,120
Speaker 1: laws this, the Whitecastle decision could have similar effects well

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Speaker 1: beyond Illinois borders. Thanks so much for joining us on

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Speaker 1: the show. James. That's James Shreeve, a partner at Thompson Coburn.

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Speaker 1: And that's it for this edition of The Bloomberg Law Show.

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Speaker 1: Remember you can always get the latest legal news on

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00:27:44,560 --> 00:27:48,840
Speaker 1: our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,

485
00:27:49,040 --> 00:27:54,080
Speaker 1: and at www dot Bloomberg dot com, slash podcast Slash Law,

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00:27:54,480 --> 00:27:57,119
Speaker 1: and remember to tune into The Bloomberg Law Show every

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00:27:57,160 --> 00:28:01,080
Speaker 1: week night at ten pm Wall Street Time. I'm June Grossow,

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00:28:01,160 --> 00:28:02,800
Speaker 1: and you're listening to Bloomberg