Speaker 1: This is Bloomberg Law with June Brussel from Bloomberg Radio.
Speaker 1: In April of twenty twenty one, Arkansas Republican Governor Asa
Speaker 1: Hutchinson veto to bill which banned gender affirming treatment for
Speaker 1: transgender children even with a parents' consent. If House Bill
Speaker 1: fifteen seventy becomes law, then we are creating new standards
Speaker 1: of legislative interference with physicians and parents. And the bill
Speaker 1: did become law after the State House and Senate voted
Speaker 1: to override his veto, and Arkansas became the first state
Speaker 1: to ban physicians from administering hormone therapy to transgender youth
Speaker 1: younger than eighteen. Other states followed with similar bands enacted
Speaker 1: in Alabama, Arizona, South Dakota, Tennessee, in Utah, and now
Speaker 1: lawmakers in more than two dozen other states are weighing
Speaker 1: legislation restrict or band access to gender affirming medical care
Speaker 1: for transgender youth, prompting legal challenges from LGBTQ groups that
Speaker 1: argue the bills or discriminatory. Joining me is Sasha Booker,
Speaker 1: senior attorney with LAMB Illegal. I would like you to
Speaker 1: start by explaining what exactly is meant by gender affirming
Speaker 1: care what it encompasses. One thing to unpack immediately when
Speaker 1: talking about gender affirming care is that it's not, you know,
Speaker 1: some kind of care that isn't already regularly provided to
Speaker 1: almost anyone, you know, whether you're talking about hormones. You know,
Speaker 1: we all know someone who is kicking testosterone because maybe
Speaker 1: you know, you're an older guy and you want to
Speaker 1: boost here, or you need it for other medical reasons.
Speaker 1: There's just a whole range of reasons why, you know,
Speaker 1: people undergo hormonal treatment. You know, one of the treatments
Speaker 1: is puberty blockers, you know, which is something that's used
Speaker 1: for a number of conditions, like precocious puberty. But really,
Speaker 1: you know, what it boils down to is that this care,
Speaker 1: you know, it's not just automat addically granted to anyone
Speaker 1: that asks for it. It's a pison that's made between
Speaker 1: a patient and a physician and their family looking at
Speaker 1: the best options on how to treat gender dysphoria, which
Speaker 1: is a serious medically recognized condition. You know that if
Speaker 1: denied that care, you know that patient's going to experience.
Speaker 1: According to the American Medical Association, and you know, other
Speaker 1: healthcare organizations really serious consequences, including suicidal ideation and debilitating
Speaker 1: depression if they're denied that treatment. That's just something that's
Speaker 1: been found by courts and by medicine across the board
Speaker 1: for decades now. So it's hard to give you a
Speaker 1: concrete definition because it's the same care that everybody gets,
Speaker 1: just that it's the care that's provided to treat gender
Speaker 1: disapoint Can you tell us generally about these laws or
Speaker 1: bills that restrict or ban access to gender affirming medical
Speaker 1: care for transgender youth? How do they differentiate them from
Speaker 1: the treatment given to other youth, for example, let's say
Speaker 1: for precocious puberty. Well, I mean they're not in the
Speaker 1: sense that they're not, you know, making a distinction. They're
Speaker 1: just picking on trans kids and saying, look, you can't
Speaker 1: have this care, and they even clarifying some of the
Speaker 1: bill language that you know, sher will continue to provide
Speaker 1: it for other conditions, but for you and your family,
Speaker 1: we're going to absolutely deny it. So it's there's these
Speaker 1: bills that you know, for all of the lift service
Speaker 1: that's given to parental rights, their bills that drip those
Speaker 1: rights from parents and say that you know, we the
Speaker 1: government without an ounce of medical training. In most cases,
Speaker 1: you know, feel like we know better than decades of
Speaker 1: research and best practice medical care, and are going to
Speaker 1: decide that we're going to create this categorical rule that
Speaker 1: says that anyone seeking a specific kind of care, say
Speaker 1: puberty blockers, we're going to categorically deny that to trans kids,
Speaker 1: you know, because we think we know better. And you know,
Speaker 1: oftentimes you have sat through a lot of these different
Speaker 1: hearings and when when pressed on these questions, you know,
Speaker 1: they will concede that they don't have the medical background
Speaker 1: or training, or you know, wave off the fact that
Speaker 1: every preeminent healthcare organization in the country that looked at
Speaker 1: the question of whether this healthcare is politically effective, as
Speaker 1: you know, resoundedly clarified that it does. Whether it's the
Speaker 1: American Medical Association and the American Psychiatric Associations, American Academy
Speaker 1: for Pediatrics. You know, the list is endless. And as
Speaker 1: opposed to that state legislators that is deciding to put
Speaker 1: theirselves in the shoes of parents and families in the
Speaker 1: medical community and decide what's best. And it's just absolutely
Speaker 1: infuriating that they were able to do this. Of course,
Speaker 1: it's one thing to you know, provide those kinds of
Speaker 1: arguments in a state legislative hearing where you feel like
Speaker 1: you've got the advantage there by not being rebutted, you know,
Speaker 1: with the science and instead of stigma. But you know,
Speaker 1: when the rubber hits the road, and in these cases
Speaker 1: moved to litigation, the courts have, even in very conservative
Speaker 1: parts of the country like Arkansas and Alabama, has said
Speaker 1: that just doesn't wash here. You're not turning to best
Speaker 1: practice medicine, you're not turning to science. You're don't have
Speaker 1: a basis for these arguments. And you know, have thankfully
Speaker 1: enjoined those really dangerous attempts to strip parents and kids
Speaker 1: of the best care that they can get. These bills
Speaker 1: and laws, do they target the parents, the children, the
Speaker 1: doctors with civil or criminal penalties even yeah, oh yes,
Speaker 1: all three. There's you know, and well, you know, mostly
Speaker 1: it's the doctors, you know, because the aim is to
Speaker 1: chill the availability of care altogether, to scare people, you know,
Speaker 1: and that's I think that bears repeating too. And there
Speaker 1: was a hearing that I watched a while back, and
Speaker 1: you know, one of the medical professionals that was providing
Speaker 1: testimonies basically told the letstate legislative hearing to stop scaring people,
Speaker 1: because that's what this really boils down to. These are
Speaker 1: really scared tactics, and that's what a lot of these
Speaker 1: bills do. They seek to criminalize providers. You know, they're
Speaker 1: following the hippocratic oaths, and they're following you know, best
Speaker 1: practice medicine, and they're looking to the science, you know,
Speaker 1: and that again is clearly shown that these this care
Speaker 1: is clinically effective, and the states that are passing these
Speaker 1: laws are speaking to drip that right of them and
Speaker 1: then to actually punish them not just with civil penalties,
Speaker 1: but with criminal penalties as well, you know. And a
Speaker 1: lot of them have a county hunter provisions that verify
Speaker 1: that if a clinician, you know, seeks to refer someone
Speaker 1: to another state for care, that they could also be
Speaker 1: on the hook for liability. So it's clearly a you know,
Speaker 1: ideologically driven efforts to be If you look at the
Speaker 1: landscape here, it's it's not just healthcare, it's sports bands,
Speaker 1: it's bathroom bands. It's absolute shameless targeting of the most
Speaker 1: vulnerable kids that we have in our school transgender kids,
Speaker 1: and npinary kids. You know, it's just absolutely reprehensible. Eleven
Speaker 1: states have bills or laws with criminal penalties, and I
Speaker 1: was surprised that the blue states of New Jersey and
Speaker 1: Hawaii are included in that. Those are bills that are
Speaker 1: going to move forward. But you know, I think that
Speaker 1: this has been a concerted effort by you know, th
Speaker 1: folks you know on the you know far right that
Speaker 1: are speaking to you know, influence you know, state legislators
Speaker 1: wherever they can, and you know in any and even
Speaker 1: in the most conservative parts of the country like in
Speaker 1: Texas and Oklahoma or wherever you have there. I mean,
Speaker 1: there's there's you know, progressive folks that you know trying
Speaker 1: to move forward, you know, legislation protecting folks. So, you know,
Speaker 1: I think that you know, the language in those bills
Speaker 1: is it just demonstrates, you know, the rabid, you know
Speaker 1: approach that a lot of these folks have taken. They're
Speaker 1: not even attempting to moderate their views to you know,
Speaker 1: make a piece of legislation viable in those places. To me,
Speaker 1: it just demonstrates, you know the viciousness of these attacks.
Speaker 1: At least three of the states, Oklahoma, Virginia, and South
Speaker 1: Carolina are targeting people up to the ages of twenty
Speaker 1: one and twenty six. Do you know how they justify
Speaker 1: that leap. I don't know how they justify any of
Speaker 1: this tork Dune. It's unbelievable. I mean to me, that
Speaker 1: just again underscores that this isn't about healthcare, this isn't
Speaker 1: about sports. This is about a view of the world
Speaker 1: that would erase transgender people altogether. And it doesn't end
Speaker 1: with healthcare, and it won't end at twenty six to one,
Speaker 1: end a thirty six. It's just an ongoing effort. You know.
Speaker 1: It's just so important, you know that people recognize that
Speaker 1: this is the partisan attack and it's it's about targeting
Speaker 1: a specific vulnerable population in our country has seen this before,
Speaker 1: you know, with different vulnerable populations, and we will prevail.
Speaker 1: But it's just a really dark moment, especially even when
Speaker 1: these bills don't move forward, they have an impact. They
Speaker 1: have a mental health impact on again some of the
Speaker 1: most vulnerable kids out there, and it's just, you know,
Speaker 1: really sad to see stay legislator get swept up in this,
Speaker 1: you know, almost trans panic and introduce these bills that
Speaker 1: target and seek to cause great harm to these kids,
Speaker 1: and you know, unfortunately that rhetoric does get to trans
Speaker 1: kids and impacts their mental health. We know that because
Speaker 1: we've seen spikes. There's a you know, a great resource
Speaker 1: available for folks called the trans Lifeline, and they track
Speaker 1: the number of calls they get, and whenever these kinds
Speaker 1: of bills are introduced, whether they're viable or not, they
Speaker 1: see a spike. I think it's just an obvious inclusion
Speaker 1: that this is because of the way in which this
Speaker 1: rhetoric is really ramped up in the last few years,
Speaker 1: that it's become you know, any divisive cultural or I
Speaker 1: guess these folks that are engaging in this war seem
Speaker 1: to forget that there are victims and there are real
Speaker 1: people on the other side of this, and there's a
Speaker 1: lot of harm and damage being done. You mentioned Arkansaw.
Speaker 1: What argument did the acl you use there to challenge
Speaker 1: the law. One of the primary arguments is the constitutional
Speaker 1: protection against providing an equal protection you know, the equal
Speaker 1: protection clause. The bills in a lot of cases clarify
Speaker 1: that again that the care that they're seeking to trip
Speaker 1: from trans kids they will freely provide to other kids,
Speaker 1: So they're not making any pretense that this is about
Speaker 1: targeting trans kids in particular, you know, a politically unpopular,
Speaker 1: vulnerable population, and the failure successfully made legal arguments to
Speaker 1: that effect, you know, into equal protection clause. But I
Speaker 1: think really what it boils down to is, but I've
Speaker 1: just been going over earlier and that the courts are
Speaker 1: thankfully rigorate and are paying attention to detail and things
Speaker 1: that you can get away within a legislative hearing don't
Speaker 1: wash there. And I think the courts in Arkansas in
Speaker 1: Alabama and that will probably see, you know, as a
Speaker 1: result of this legislative session as well, they have seen
Speaker 1: through that, you know, the charade. You know, they know
Speaker 1: that decisions that are being made here aren't being made
Speaker 1: in the best entry of the state or of people
Speaker 1: in Arkansas, and they're being made based on animals. Otherwise
Speaker 1: you would be able to provide the scientific evidence that
Speaker 1: would support your view that this carrey danger. And the
Speaker 1: courts have looked at the arguments that are being put
Speaker 1: forward showing that no, you know, this carrey is medically necessary.
Speaker 1: It's held the same carrits provided to other kids, you know,
Speaker 1: on a daily basis, and they're not going after precocious puberty,
Speaker 1: and I'm trying to strip puberty blockers from those kids.
Speaker 1: They're just going after trans kid And I think that
Speaker 1: the courts and really seen through that, and I'm confidence
Speaker 1: that that will continue to get the case. So in Arkansas,
Speaker 1: that law, the so called Safe Act, was enacted over
Speaker 1: the veto of its Republican governor. Yet the Arkansas Attorney
Speaker 1: General said his office will continue to defend the acts constitutionality.
Speaker 1: What stage are they at? Was it just a preliminary
Speaker 1: injunction and now they're going for a permanent rule, you know,
Speaker 1: And I just you know, I can't let this go
Speaker 1: without pointing out that folks are probably familiar with the
Speaker 1: news clip of John Stewart formally from The Daily Show
Speaker 1: interviewing the Attorney General's office and you know, really call
Speaker 1: them out on the junk science they were putting out
Speaker 1: with regard to the care and he responded to, you know,
Speaker 1: the junk science points that that's an incredibly made upsistic,
Speaker 1: you know, and that's what the courts are saying as well.
Speaker 1: But to answer your question, what happened in Arkansas that
Speaker 1: the court you know, yes, you're right, and it just
Speaker 1: shows to me of all the priorities that the state
Speaker 1: legislature could be focused on, you know, whether it's improving
Speaker 1: schools or fixing postles in the roads. I don't know,
Speaker 1: there's like seems like there's a million things to do
Speaker 1: other than you know, really focus in on this vulnerable
Speaker 1: lessons too percent of the population and pass these really
Speaker 1: vicious laws. But it just shows you the panic apparently
Speaker 1: that that you know, involved with these these moves to
Speaker 1: try to strip these protections. You know that they would
Speaker 1: override Governor Hutchinson's veto and uh and and thankfully you know,
Speaker 1: the court you know it did issue a preliminary and
Speaker 1: juncts and saying like the state back or whatever you
Speaker 1: want to call it, you know, we call it the
Speaker 1: attack trans Kids Built. Um was enjoined and it was
Speaker 1: appealed by the Attorney Generals US to the a Circuit
Speaker 1: Court of Appeals, and the Circuit Court of Appeals, you know,
Speaker 1: again looked at the science and said, you know, frankly, no,
Speaker 1: this is that doesn't watch here, you know um and
Speaker 1: you know the shows science over stigma and upheld them
Speaker 1: the injunctions, so it's still in place. There was a
Speaker 1: trial um last fall and we were expecting a decision
Speaker 1: I believe sometimes soon, but I would check in with Afia,
Speaker 1: you folks who have litigated this case masterfully. Also, it's
Speaker 1: not just Arkansas. There was another healthcare band past in
Speaker 1: Alabama last year and similarly, the court you know it
Speaker 1: needs are very as folks know, conservative parts in the country.
Speaker 1: We're not talking about Hawaii here, and the court looked
Speaker 1: at the evidence and said, no, we're gonna I'm not
Speaker 1: gonna let this dangerous piece of legislation that's not grounded
Speaker 1: in science and clearly ideologically driven go into effect and
Speaker 1: target and harm real human beings, real people. So thankfully
Speaker 1: that case was enjoined as well. Of course, these you know,
Speaker 1: are going to continue to move through the process, but
Speaker 1: I'm grateful that they won't go into effect, you know,
Speaker 1: while litigation proceeds, so these folks can obtain the care
Speaker 1: at these parents and family and providers can give the
Speaker 1: best care that they can for these folks and these
Speaker 1: really difficult parts of the country. So does the ACLU
Speaker 1: or LAMB illegal intend to fight each of these laws
Speaker 1: if they're passed. We're going to defend trans kids and
Speaker 1: you know, every day of the week. Three sixty five
Speaker 1: days a week. You know, we have to make smart,
Speaker 1: strategic decisions, you know, and that's just something that's developing.
Speaker 1: And we certainly will fight until every trans kid is
Speaker 1: able to access the care that they need and deserve.
Speaker 1: And that's going to be what we're gonna do, you know,
Speaker 1: till the end, and I know we will prevail. This
Speaker 1: is again the mirrors you know, the civil rights battles
Speaker 1: that we've had in this country unfortunately, over and over
Speaker 1: and over again, you know, when they're talking about marriage
Speaker 1: equality or non discrimination protections. It's just the same story
Speaker 1: over and over again. And you know, I am confident
Speaker 1: that we will prevail. And again, you know, I'm really
Speaker 1: excited about the fact that the courts have seen through,
Speaker 1: you know, the charade and understand that this is care
Speaker 1: that is medically necessary. They're turning the science, you know,
Speaker 1: rather than stigma in reviewing these challenges. There are also
Speaker 1: bills that band transgender girls from playing on sports teams
Speaker 1: that match their gender identity. Have there been legal fights
Speaker 1: against those bills as well if they progressed to any
Speaker 1: reportable point? Um, yeah, And again in response to that
Speaker 1: is I'm going to make the larger point, you know,
Speaker 1: once more, that this really demonstrates the fact that, you know,
Speaker 1: whether it's healthcare or sports, or bathrooms or names and pronouns,
Speaker 1: these attacks are across the board. It's just absurd to
Speaker 1: me that, you know, that day legislatures would invest so
Speaker 1: much time and money and effort on such a vulnerable population,
Speaker 1: you know, which is less than two percent of the
Speaker 1: population and target these kids when there are so many
Speaker 1: other important priorities, you know, making sure that people are
Speaker 1: able to get the healthcare they need, and making sure
Speaker 1: that the schools are meeting their kids needs and can
Speaker 1: sure people have food on the table. It's just unbelievable
Speaker 1: that they've chosen this is the thing that they feel
Speaker 1: is the most important for them to get done. But yeah,
Speaker 1: so there are a number of challenges that are working
Speaker 1: there through the courts to make sure that kids can participate.
Speaker 1: You know. One of them is the case that you know,
Speaker 1: we're working on involving a transgender girl in the state
Speaker 1: of West Virginia who is seeking to play on our
Speaker 1: girls cross country team, and that case is working its
Speaker 1: way up to the four circuit. You know, we're working
Speaker 1: on a case in Tennessee for on behalf of the
Speaker 1: transgender boy who just wants to play golf on the
Speaker 1: boys team and is being told by the state of
Speaker 1: Tennessee that he can't. And there's also a couple of
Speaker 1: other cases that have been filed, you know, challenging those
Speaker 1: as well. But again, it's not about sports, So this
Speaker 1: is about targeting trans kids. Thanks Sasha. That's Sasha Bookert,
Speaker 1: Senior attorney was Lambda llegal companies in Illinois that collect fingerprints,
Speaker 1: face scans, and voice prints without proper consent face the
Speaker 1: risk of millions of dollars in penalties. After the state
Speaker 1: High courts ruling in a case against Whitecastle, a former
Speaker 1: Whitecastle manager alleged that the Hamburger chain violated her biometric
Speaker 1: privacy rights by collecting fingerprints without her written consent every
Speaker 1: time she clocked in and out of the timekeeping system.
Speaker 1: The Illinois Supreme Court found four to three that a
Speaker 1: separate claim for damages can arise each time a business
Speaker 1: fails to seek permission to gather biometric data from workers
Speaker 1: or consumers, or fails to disclose retention plans for that information.
Speaker 1: Since the state's enactment of the Biometric Information Privacy Act
Speaker 1: in two thousand and eight, It's been viewed by defense
Speaker 1: lawyers as a boon to the plaintiff's class action bar
Speaker 1: which has filed litigation against big tech and social media
Speaker 1: companies airlines, railroads, retailers, grocery stores, restaurants, and more. Joining
Speaker 1: me as privacy specialist, James, a partner at Thompson Coburn
Speaker 1: start by, you know, explaining what the issue was before
Speaker 1: the Illinois Supreme Court. There's been several ambiguous issues that
Speaker 1: have been litigated under the Biometric Information Privacy Act, and
Speaker 1: one of the early ones that was addressed in a
Speaker 1: case called Rosenbach was who can bring an action under
Speaker 1: BIPPA to utilize the liquidated damagist provisions? Is an aggrieved
Speaker 1: person as the law defines it. And then the issue
Speaker 1: that came up in Whitecastle was whether or not each
Speaker 1: collection of a biometric can result in its own claim
Speaker 1: as far as those liquidated damagist provisions that are concerned. So,
Speaker 1: if let's say an employer uses as a biometric time
Speaker 1: clock and they're they're sued by the employee for violations
Speaker 1: of PIPPA, they you say that the same thumb print,
Speaker 1: is it a claim for just that first collection of
Speaker 1: the thumb print, or is it for every collection from
Speaker 1: the first to the last, Because each violation it can
Speaker 1: be a thousand dollars liquid data damages or if it's
Speaker 1: a knowing or reckless violation, five thousand dollars. So obviously
Speaker 1: this makes the potential liability several times greater in magnitude.
Speaker 1: I've never done anything about on the what is the
Speaker 1: purpose of Illinois Act? I mean, do the employees at
Speaker 1: Whitecastle know? Don't they know that they're getting their fingerprints scanned?
Speaker 1: What's the point of the act. The idea was that
Speaker 1: biometrics are considered just a somewhat different type of sensitive
Speaker 1: information than others, largely in part because they can't be changed.
Speaker 1: Whereas you can you can change a password, you can
Speaker 1: change an account number, you can't change a thumbprint. You
Speaker 1: can't change in Irish scant and so the onner like
Speaker 1: lature wanted to make sure that people were notified and
Speaker 1: give their consent for those those collections. And so actually
Speaker 1: many years ago it was enacted, I think in two
Speaker 1: thousand and eight. Technically it was the second state biometrics
Speaker 1: law after Texas, and actually one of my colleagues here
Speaker 1: at the firm John Cullerton was in the only Senate
Speaker 1: and was president, and the one I sent it soon
Speaker 1: after the law was enacted, and so he could tell
Speaker 1: you that they just wanted people to be notified that
Speaker 1: this was happening and into some way to give their consent,
Speaker 1: so to scourage the surreptitious collection of this kind of information,
Speaker 1: and to have some incentive for employers or others to
Speaker 1: get that kind of consent in place. But the intention
Speaker 1: wasn't what we have in place now, which is that
Speaker 1: this has become just a hot bit of litigation with
Speaker 1: absolutely enormous potential damages for a company, when the plant
Speaker 1: don't have to show any actual damages at all. Why
Speaker 1: did the majority decide that you need consent I guess
Speaker 1: for each and every finger swipe or face scan. Here
Speaker 1: they were really focusing on the damage issue. Theoretically, you
Speaker 1: could certainly do one consent that would cover all collection.
Speaker 1: But if you don't get that appropriate consent, whether it's
Speaker 1: once or each time, could you have a claim for
Speaker 1: each one of those? And so here the Millinary Supreme Court,
Speaker 1: the majority is saying, and I would notice it it's
Speaker 1: a four three majority. So it was contentious that although
Speaker 1: they're sympathetic that this could result in extremely large damages,
Speaker 1: that the way of the law is written, that this
Speaker 1: is the conclusion they had to come to the dissent
Speaker 1: or for Democratic appointed justices in the majority, one Democrat
Speaker 1: that chie judge and two Republicans in the descent, that
Speaker 1: the legislature could not have intended this kind of result,
Speaker 1: to have this kind of enormous damage potential. The damages
Speaker 1: are discretionary, so you could have a case without any
Speaker 1: damages at all. Yeah, And for strategic reasons, a lot
Speaker 1: of plaintiffs don't plead any actual damages from it to
Speaker 1: avoid having cases removed to federal court. It's sometimes more
Speaker 1: advantageous to not played any So, yeah, you can have
Speaker 1: a case where someone's pleasing that they were not actually
Speaker 1: damaged at all based on the violation of PIPPA, but
Speaker 1: they want to utilize that thousand dollars per violation statutory
Speaker 1: Are there some huge awards out there that have already
Speaker 1: been put in place. There was a case against a
Speaker 1: railroad freight railroad company a few months ago. It was
Speaker 1: a very large verdict and we're in somebody just at
Speaker 1: the start of this because we're working through several of
Speaker 1: the issues. A lot of cases right now have been settled,
Speaker 1: and we've seen certainly settlements many in the millions of dollars,
Speaker 1: tens of millions of dollars. Those are willing to go
Speaker 1: up considerably after the ruling and Whitecastle. As we move
Speaker 1: forward to cases that are currently pending are going to
Speaker 1: be filed, I think we can expect that they're going
Speaker 1: to be a settlements in those cases because this certainly
Speaker 1: provides a lot more leverage to Plainiffs Council in those settlements.
Speaker 1: And so I think we're going to see settlements that
Speaker 1: are going up considerably from what we've seen in the past.
Speaker 1: And is it mostly employees who are suing under this law, Yes,
Speaker 1: Andswer That's one of the things that the law is
Speaker 1: not written specific to employees. But the vast majority of
Speaker 1: the cases have been filed to this point have been
Speaker 1: involving employees and in disproportionately involving biometric time clocks. So
Speaker 1: is it likely that in light of this, employers will
Speaker 1: just find another way to track when their employees come
Speaker 1: in and leave or go back to the old time stamps.
Speaker 1: I don't know, it is quite possible. I mean I
Speaker 1: think obviously from my perspective, I'm a compliance attorney, so
Speaker 1: I help clients get into compliance and get the contents
Speaker 1: they need, and so it makes it all the more
Speaker 1: important to do that. I mean, I think everybody has
Speaker 1: to do a risk analysis. Is using that biometric time
Speaker 1: clock worth it for me? You know? Or can I
Speaker 1: address the risk appropriately with getting a good consent? I mean,
Speaker 1: I'd also know the focus to this point has all
Speaker 1: been on failure to obtain proper consent, the prior written
Speaker 1: consent that DEPPER requires. There are several other requirements ENDPA
Speaker 1: about the use of biometric information, about how how it
Speaker 1: can be stored, how protected. At this point, I think
Speaker 1: the focus has been on noticing content just because that's
Speaker 1: in some ways the easiest to prove. But if if
Speaker 1: we you get better consent in place, we may see
Speaker 1: some of those other issues get litigated down the road.
Speaker 1: By doing the scan, the fingerprint scan or the face scan,
Speaker 1: isn't there an implied consent because you're doing it and
Speaker 1: you know you're doing it. The issue is that the
Speaker 1: language of PIPPA as you need to have prior express
Speaker 1: written consent, and so that makes it difficult. Even if
Speaker 1: the average person would realize that that is being collected
Speaker 1: about them, and they've repeatedly provide the biometric It still
Speaker 1: says you have to get consent. So do you think
Speaker 1: as a compliance officer that an employee signing a written
Speaker 1: consent form, you know, a lawyered written consent form, once
Speaker 1: can state that anytime I scan my fingerprint, I give consent.
Speaker 1: Would that work or would you think that each and
Speaker 1: every time they you have to have a consent. You
Speaker 1: can never give that iron cloud guarantee. But I think
Speaker 1: if you worried the consent properly, you make it clear
Speaker 1: that the biometric identifier will be collected repeatedly over time.
Speaker 1: You make it it's conspicuous, so the person knows clearly
Speaker 1: what they're consenting to. I think you could do it
Speaker 1: with a single consent. It'd be pretty impractical to do
Speaker 1: it each time. I certainly hope that courts would be
Speaker 1: would recognize that, and we have a lot of other
Speaker 1: contexts where a single consent can cover multiple actions, So
Speaker 1: I would certainly hope that would take care of it here.
Speaker 1: A Whitecastle spokesman said, we're reviewing our options to seek
Speaker 1: further judicial review given the strong dissenting opinion. What were
Speaker 1: their judicial review were they thinking about? This is the
Speaker 1: highest court in Illinois, right sure, and I'm guessing they
Speaker 1: probably need There are other legal points to be addressed.
Speaker 1: I mean, I think that there's an argument to be
Speaker 1: made that there are constitutional guarantees on excessive fine, and
Speaker 1: you could certainly make the argument that this portion of them,
Speaker 1: in light of the finding at Whitecastle, is unconstitutional because
Speaker 1: it violates those constitutional guarantees against successive fine, giving what
Speaker 1: we've seen them from the court. Now and more states
Speaker 1: are considering these kind of laws. There are sort of
Speaker 1: two models of state laws out there. There are three
Speaker 1: biometric privacy laws existing. You have the Illinois law, which
Speaker 1: has this statutory damage's provision from its a private right
Speaker 1: of action. You have somewhat similar laws that were enacted
Speaker 1: in Washington State in Texas that have similar substantive provisions
Speaker 1: but don't have a private right of action and don't
Speaker 1: have the statutory damage this revision. And so some states
Speaker 1: are looking to the Texas or Washington model. Some states
Speaker 1: are looking at Illinois as they consider biometric privacy law.
Speaker 1: I know that in New York State they're considering a
Speaker 1: law that's very very similar to when Illinois has done.
Speaker 1: Missouri and I think Massachusetts all considering laws that look
Speaker 1: a lot like Illinois. So if you adopt very similar
Speaker 1: laws this, the Whitecastle decision could have similar effects well
Speaker 1: beyond Illinois borders. Thanks so much for joining us on
Speaker 1: the show. James. That's James Shreeve, a partner at Thompson Coburn.
Speaker 1: And that's it for this edition of The Bloomberg Law Show.
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