Illinois Southern District Judge David Dugan
A federal judge has dismissed a class action accusing a funeral home and personalized fingerprint jewelry maker Legacy Touch of improperly collecting fingerprints from corpses.
Lauren Weiner alleged Legacy Touch and Glueckert Funeral Home violated the Illinois Biometric Information Privacy and Consumer Fraud and Deceptive Business Practices acts. According to the complaint, Glueckert captured and collected fingerprints from a decedent and gave them to Legacy Touch, which created “fingerprint keepsakes” and sent promotional materials to friends and relatives.
Weiner said the companies violated BIPA through a failure to get informed consent for collecting the fingerprints; for lacking a data retention and destruction policy; and for improperly disclosing and profiting from biometric identifiers, while also bringing common law allegations of privacy invasion, interference with the right to possess a decedent’s remains, civil conspiracy and negligent and intentional misrepresentation.
In an opinion filed Aug. 7, U.S. District Judge David Dugan granted the companies’ motion to dismiss the complaints.
Dugan first dismissed any claims brought on behalf of the decedent’s estate, agreeing “they fall outside the limited scope of permitted claims for estates under Illinois law,” leaving analysis of the remainder of Weiner’s complaint for only those claims brought on her own behalf. He then turned to an issue he said hadn’t before reached a federal judge: “Can the next-of-kin of a decedent sustain claims under BIPA relating to the deceased’s biometric information?”
BIPA, Dugan wrote, has no explicit reference to human remains or any discussion of whether protections extend to the deceased. Further, he pointed to the General Assembly enacting BIPA in significant part because biometric data, unlike information such as a Social Security number, is “unique and immutable,” which makes it even more unlikely someone can bring a BIPA claim on behalf of another person.
“In this case, plaintiff’s own legal rights have not been invaded by defendants’ actions, nor have her pecuniary interests been affected,” Dugan wrote. “Additionally, it is not the biometric information of plaintiff that is subject to any alleged breach, but that of her deceased relative.”
Although there are laws recognizing the right to possess remains for purposes of proper disposition, Dugan wrote, Wiener didn’t suggest a state law allows a property right in a dead body. Federal law, such as the Native American Graves Protection and Repatriation Act, defines human remains as “cultural items” and not legal “persons” with independent protected interests.
“Further, the ‘legally authorized representative’ language in BIPA applies to a ‘living person or customer’ such as a parent of a minor, a guardian or a spouse,” Dugan wrote. “Human remains are not persons or customers.”
Dugan didn’t consider Legacy Touch’s argument it isn’t subject to BIPA as a Missouri-based company “because the duty to publish retention or destruction policies is owed to the public generally and plaintiff has not sufficiently alleged a concrete and particularized harm,” and noted many other claims are inapplicable after asserting neither Weiner nor the remains “are ‘persons aggrieved’ under the meaning of” BIPA.
Turning to the state consumer fraud law, Dugan said Weiner sufficiently alleged the “practice of collecting decedent’s fingerprints without prior consent and subsequently requesting retroactive consent constitutes an unfair practice under ICFA. Additionally, the omission of a request for consent can be considered deceptive if it involves the suppression or omission of a material fact.”
However, he continued, the claim can only survive with evidence “of actual damages resulting from emotional distress, data storage space consumption, annoyance and loss of time” and specifically a financial loss. Dugan said Weiner showed neither a pecuniary loss nor economic damages, including any claim to have purchased any products the complaint references, and noted psychological harm and nuisance claims aren’t sufficient for ICFA claims.
The privacy claims likewise failed, Dugan said, as Weiner couldn’t establish a privacy interest in another person’s identifiers and privacy rights don’t accrue after death.
“Even if the fingerprint data of a deceased person is private, (Weiner) argues that the manner in which decedent’s fingerprints were extracted, which was instructed by Legacy Touch and executed by Glueckert, amounts to a highly offensive intrusion upon a private matter,” Dugan wrote. “These instructions provided that decedent’s finger be pressed onto the scan pad at different pressures to obtain the best quality fingerprint scan. However, these methods of fingerprint scanning of a decedent are not enough to arise to the ‘highly offensive’ standard.”
Dugan said Weiner’s allegations didn’t claim the companies interfered with or denied the right to a proper cremation or burial and failed to show how Glueckert was negligent or made omissions and false representations, while Legacy Touch argued Weiner never learned of its operation until receipt of the marketing materials.
Weiner has until August 27 to amend her complaint.
Weiner and other plaintiffs have been represented by attorney Gary Klinger and others with the firms of Milberg Coleman Bryson Phillips Grossman, of Chicago and Coral Gables, Florida; Cuneo Gilbert & LaDuca, of Washington, D.C.; Hausfeld LLP, of Washington, D.C. and New York; and Neal & Harwell, of Nashville, Tennessee.