David Morrison Quoted in “Have I Captured a Biometric Identifier?’: Privacy Litigators Wait for Answers on Court’s Split”
News
09.14.26
Goldberg Kohn Litigation Principal David Morrison is quoted in "Have I Captured a Biometric Identifier?': Privacy Litigators Wait for Answers on Court's Split," published in the September 14, 2026, edition of Law.com.
The article explores the split among courts concerning the scope of the Illinois Biometric Information Privacy Act (BIPA) and whether a biometric identifier, meaning a person's distinctive traits used for identification purposes, must identify a specific person for an individual to have a valid claim under BIPA. The discrepancy stems from how the law defines key terms. BIPA explicitly defines “biometric information” as playing a role in identifying people, but it doesn’t include any such description in the definition of “biometric identifier.”
David, who represents companies in BIPA litigation and counsels clients on biometric privacy risks, noted the importance of the court's ongoing efforts to define the statute's reach.
Some judges in the U.S. District Court for the Northern District of Illinois have reasoned that an identifier "just needs to be capable of identifying" because at some point down the line a person could be identified with additional information, explains David in the article. Meanwhile, he says, other judges interpret BIPA's language to mean a violation hinges on whether the alleged violator can identify someone at the time the information was captured because the term "identifier" inherently implies that it must be able to be tied to someone.
According to David, there is one case pending in the U.S. District Court for the Northern District of Illinois, Hooks v. CloudSpotter Technologies, that could lead to answers. However, the court may once again have to weigh in on the split if the case doesn't settle.
"Judges are inconsistent on whether to construe an identifier as a mere facial scan, for example, or as the product of a facial scan that verifies the identity of the person scanned."
- David Morrison
The developing split adds to the implications for companies that use technologies involving facial recognition, facial geometry, voiceprints and other biometric information.
"As [BIPA] cases started expanding beyond purely employment based, which inherently identifies somebody with an identifier, you get to things like Google or Amazon or Meta where they are scanning all types of photos, images, things that are out there," David is quoted as saying. "You're capturing information without having any understanding of who you've just captured. … And then the question is, 'Have I captured a biometric identifier?'"
