Articles

September 15, 2021

Artificial Intelligence software manufacturer, Brainshark Inc. (“Brainshark”), was hired by its client to use its artificial intelligence software to scan its client’s sales employees’ facial biometric data to score the employee’s sales presentations.  The employee, Lori Wilk, learned of this and sued Brainshark for failing to get her written/informed consent.  It is alleged the use of this software is a violation of Illinois’ Biometric Information Privacy Act (“BIPA”).

Wilk’s claims Brainshark’s software is designed to assist sales managers in training and coaching employees by using its artificial intelligence automated presentation scoring function. Wilk’s claims the technology uses facial mapping technology to analyze and score the presenter’s facial expressions and emotions like happiness, aversion, and fear.  However, no one obtained her informed consent before the technology was used.

Wilk’s complaint alleges she used the software while working for her employer, RQI Partners Inc., from her Illinois home. She claims to have uploaded six recorded sales videos to the platform between November 2020 and mid-2021.  Wilk claims Brainshark’s software was used to conduct biometric analysis on each of her videos she uploaded without first informing her that the software was being used and Brainshark never obtained her written consent to proceed with such collection. 

Wilk is looking to represent a class of Illinois workers who also uploaded videos into the Brainshark platform and had their biometric data scanned without prior informed consent.  Wilk is seeking for her and the proposed class, statutory damages of $1,000 for each negligent BIPA violation and $5,000 for each willful violation.

This suit is quite timely as the Seventh Circuit Court of Appeals, which hears federal appeals out of Illinois, is about to hear arguments on whether an Illinois district court was correct when it ruled in Cothron v. White Castle Sys. Inc. that each individual BIPA violation gives rise to a new BIPA claim instead of just the first occurrence.  In other words, is the failure to get permission one violation or is it a separate violation every time a bioscan is done without proper authorization.  The Cothron decision will have huge implications for BIPA claims as it will set a precedent for damages owed for BIPA violations.  We will continue to keep our readers updated on BIPA proceedings in Illinois and elsewhere.

Brody and Associates regularly advises management on complying with the latest state and federal employment laws.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.