Walmart Illegally Collecting Illinois Shopper Biometric Data, Milberg Suit Claims

Walmart is known for its low prices, but Walmart shoppers in Illinois are getting more than they bargain for due to the retailer’s use of “cameras and advanced video surveillance systems” that violate the Illinois Biometric Information Privacy Act, alleges a Milberg class action lawsuit.

The lawsuit, filed in U.S. District Court for the Northern District of Illinois by Milberg attorneys Gary M. Klinger and Blake Hunter Yagman, claims that Walmart unlawfully collects, stores, and uses customers’ biometric data. If the lawsuit is successful, eligible Illinois residents could receive $1,000 – $5,000 per violation of Illinois law.

Walmart’s Vast Surveillance Apparatus

Walmart confirmed in 2019 that it uses a surveillance program called “Missed Scan Detection” in more than 1,000 stores nationwide to reduce losses from theft, fraud, and scanning errors.

Walmart’s stores in Illinois are outfitted with cameras and advanced video surveillance systems that – unbeknownst to customers – surreptitiously collect, possess, or otherwise obtain Biometric Data.

In its privacy policy, Walmart acknowledges that its surveillance equipment may capture the “biometric information” of shoppers, including images of the iris, retina, and fingerprints. Milberg’s lawsuit asserts that Walmart has not publicly acknowledged its use of facial recognition technology in U.S. stores.

The Illinois Biometric Information Privacy Act and Milberg’s Lawsuit

Illinois has one of the strictest biometric privacy laws in the country. Its Biometric Information Privacy Act (BIPA) mandates, among other measures, that a company may not obtain and/or possess a person’s biometric data unless it:

• Informs that person in writing that it is collecting their biometric identifier or biometric information
• Informs that person in writing of the specific purpose and period for which biometric data is being collected, stored, and used
• Receives a written release from the data subject to collect his or her biometric data
• Makes public written retention schedules and guidelines for permanently destroying the biometric data

Walmart violated these and other BIPA provisions when it obtained—without notice, written consent, or publishing data retention policies—the biometric data of Illinois residents shopping at Walmart stores across the state, alleges Milberg’s class action lawsuit.

“Walmart’s stores in Illinois are outfitted with cameras and advanced video surveillance systems that—unbeknownst to customers—surreptitiously collect, possess, or otherwise obtain Biometric Data,” states the complaint. “Walmart does not notify customers of this fact prior to store entry, nor does it obtain consent prior to collecting its customers’ Biometric Data. Further, Walmart does not provide a publicly available policy establishing a retention schedule and guidelines for permanently destroying this Biometric Data.”

Walmart and Clearview AI

Milberg’s biometric class action lawsuit also alleges that Walmart uses software from Clearview AI, Inc. to “match facial scans taken in its Illinois stores with billions of facial scans maintained within Clearview’s massive facial recognition database.”

Clearview has created its biometric database from open access social media platforms like Facebook, Instagram, and Twitter. Walmart is accused of sending the biometric information it collects through Clearview’s algorithm—which would be yet another violation of the Illinois BIPA.

If true, this could mean that Clearview AI violated the terms of a settlement it reached in May stemming from a 2020 lawsuit, according to Business Insider. A Walmart spokesperson told Business Insider that the company is not a Clearview client.

BuzzFeed News reports that Clearview has given its software to hundreds of private companies, including Walmart.

Class Allegations and Proposed Remedies

The lead plaintiff in the case is an Illinois resident who says that he has gone to Illinois Walmart stores on numerous occasions over the past few years, including an instance in August 2022 when he entered a store in Olney, Illinois accompanied by two minor children.

“On information and belief, each Illinois Walmart location entered into by Plaintiff is equipped with a facial recognition-enabled video surveillance system,” the complaint states. The complaint additionally states that the plaintiff did not know Walmart was collecting, obtaining, storing, and/or using his biometric data, and that Walmart violated his BIPA statutory rights.

The lawsuit seeks to establish a plaintiff class that meets the following definition:

All individuals who, while residing in the State of Illinois, had their Biometric Data collected, captured, received, obtained, stored, sold, leased, traded, disclosed, redisclosed, disseminated, and/or otherwise profited from and/or used by Defendant without their consent.

Under BIPA, the plaintiff and class members could be in line to receive statutory damages of $1,000 (negligent violation) or $5,000 (reckless and intentional violation) per violation, as well as attorneys’ fees, costs, and litigation expenses.

Milberg: A National Leader in Biometric Data Lawsuits

The biometric data lawsuit allegations brought by Milberg in this lawsuit are similar to those in recent cases we filed against Bose and CVS. Our data privacy lawyer work at the cutting edge of law and technology, and our lawsuits produce meaningful checks and balances against technology and the companies that wield it.

To discuss a possible biometric data lawsuit, please schedule a free case review.