but pleading that the defendant did not provide her statutorily required information at the time but biometric information allegedly was gathered based on this court's prior precedents the answer is yes alleged violations of the illinois biometric information privacy act are sufficient to confer standing in federal court in grotesque this court laid out the test used to determine if a statutory violation confer standard standing is found if a statutory violation presents an appreciable risk of harm to the underlying concrete interest that the legislature sought to protect by an use the vending machine for employees in in the cafeteria now her consent may not of dan as informed as the illinois legislature intended to be and it may not have been in writing but nevertheless she freely gave it a c and if so how was she harmed in any concrete  sense yes your honor in order to answer that question i think we need to look to the illinois supreme court's ruling in rosenbach in that case the illinois supreme court determined that the illinois legislature created a legal interest in individual's quote privacy and control over and quote once biometric information the only supreme court further held quote the act of vests and individuals and customers the right to control their b information by requiring notice before collection and giving them the power to say no by withholding consent close quote because plaintiff alleges that she gave consent without having received the statutorily required i've had a couple of thoughts about that one it seems that certainly the illinois legislature was trying to achieve informed consent but it's beginning to sound as though this is a procedural injury of the type that spokeo doesn't recognize that the other point i would just throw in illinois itself does not follow standing rules that are as strict as those established in article three and that's clearly illinois own choice so just because this case could go forward in illinois court doesn't necessarily mean it could go forward in a federal court we agree honor the stand in question is analyzed differently in illinois state courts and simply because the illinois supreme court found that there was standing in that state court that particular ruling is not binding on this court however the illinois supreme court's interpretation of the statute respectfully is binding on the court and under the grow shock analysis the st step is to determine what is the interested issue metric information to the point as to whether this is a procedural or a substantive violation we think this is at least as substantive as the failure to disclose but was held to be actionable in the roberts case and we briefed that extensively in that case there was a failure to provide information that could have been used in  contesting an adverse employment decision based on information governed by the fair credit reporting act similarly here as the illinois supreme court has noted individuals in illinois now have the right to control their information and giving them the power to say no by withholding consent after the provision of information in other words in both robertson and in this case the harm is failing to provide information there was a much narrower or much less material and it's immaterial failure to follow the statute in that case there was a failure to indicate that written  notice was required the notice that was given provided that notice could be provided this court found that to be a mere procedural violation because in that case it was held not to infringe on the articulated interest in congress and acting the fair debt collection practices act which was to prevent false or misleading information to be provided to  the risk of harm was entirely counterfactual because she was not at any risk of losing her statutory rights because there was no prospect that she would try to exercise them and that's the big difference i would point the court back to roberts and in which this court specifically noted that standing did not depend on whether the point of alleged that she would in fact of acted in reliance on the information  i will remind you mr wiley that you're approaching the two minute mark and you would indicated you wanted to save some rebuttal time yesterday or before that might i just ask one very quick question of course at times the t c make for article three standing stanton so you are admitting she suffered a concrete injury and of course i understand we're only at the tweeting stage at this point to go into the factual defenses that we may have but i will note that it is not it's not inconsistent to say that the allegations of the complaint are sufficient to confer standing even if the point  christine bryant bryant values one thing as much as anything else in this litigation certainty compass group created on certainty i would moving this case to federal court that uncertainty arose from a district court consensus that plaintiffs like brian lack article three standing to pursue claims for violation of the biometric information privacy act bryant was not willing to litigate or attempt to settle her case in federal court and risk the result being vacated later for a lack of article three standing that's why bryant was a three man not aware of any other way you don't want to have a pointless exercise only to find out that article three is a problem at the end but let's look at the merits and i want to ask you why if she was perfectly aware that she was giving them her fingerprints and she was perfectly aware that she was somehow linking those fingerprints to a payment method for the convenience of using these vending machines why isn't any remaining harm something that looks more like the situation she doesn't actually give informed written consent about the illinois biometric information privacy act she knows they've captured her fingerprints the system wouldn't work if they hadn't and it's unclear what she would have done with the retention and destruction schedules honor one of the require disclosures that compass should have made before collected by and spy metric data was telling her how long it would keep her data and if  told her we're going to collect this data we're going to keep it permanently that could have her decision of whether to place her fingerprint on that biometric terminal scanner likewise if companies had said we're going to keep your data long as you work at this business and use this cafeteria that could have employees her decision and in rosenbach the illinois supreme court did describe the biometric act protections as procedural protections and that those procedural protections define the contours of the privacy rights that statute created and so it may be true that if you place your fingerprint on a scanner you understand why you're doing it you understand the purpose of the collection which is one of the written disclosures under the act but it may not follow that you understand how log collapsed or keep that information and what they're going to do with it so let me also ask and king i thinking of to see is let me just quickly get this one question to what extent are you relying on the fact that in this case we're talking about her information you know something personal and private to her the fingerprint whatever whereas in to see is it was really more an informational disclosure are you going down the line that justice thomas did about you know analogies to where you know it's your property and you're able to tell people not to come on it even if you don't have a particularly serious reason not to want them there yes your honor i while this was not a with this act elevated biometric data to a protective wall and trust and so you know i do think that is a potential basis for standing but it's not one that compass could argue below  basis for jurisdiction is adequate although i do think it's a potential basis for sure and i think one potential distinction from because c s that compass but doesn't necessarily draw out is that the disclosure there was a legal requirement that you dispute the debt in writing whereas the disclosure under the biometric act part of it is factual how long will you keep biometric data that you collect so i think there's a potential distinction between robert yes your honor i do agree that part of the purpose of the statute is to allow informed reflection on whether to provide that data to another i think making the disclosure of the in writing aides in that deliberative process that you know a consumer or a person who gets something in writing thinks about it decides whether to sign their name may give that a little more weight when they decide to consent rather than just someone thing i put your finger on the scanner and then they do it and they say therefor make this a concrete injury for purposes of article three were or were or is this type of statutory violation by its nature  serio to qualify as concrete injury so i don't think your honor that the legislature could have done more work they potentially could have done last i mean if they had limited the pocket right of action to someone who had suffered actual damages then i think claims under the statute would certainly satisfy article three in that regard like if only someone  has metrics were stolen and they suffered some loss could pursue a claim then that would satisfy article three standing but the legislature and tensional i chose not to do that and rosenbach the illinois supreme court said that the strategy of the act was in part to protect a person's privacy interests in their data before it ever compromised in the st place and in part i think the law is a prophylactic statute and i think there is some difficulty at times under article three dealing with these kind of core plastic statutes and bubalo the case under the the cable act a consumer says the time warner violated the act by possessing his personal data for eight years after he cancelled his cable television subscription and the app clearly envision deleting that data so that it's not available to be stolen but this circuit said that the original article three standing there because just because the entity possessed the data didn't mean that anyone would ever access it appropriately and so it seems like in a way the article three standing doctrine has a way of limiting the legislature from an acting prophylactic statute to what extent do we have a sillier to plea here and what i'm specifically thinking of is the lack of information in the complaint indicating what if anything bryant would have done differently if compass had complied perfectly with everything under fifteen a and b statute so you are at least in state court  plead what she would have done differently and it's true that if she had pled here that she would not have provided her biometric data compass group had made the required written disclosures that may have changed the article three standing with analyzing the particular allegations of the complaint i don't think that brian can be faulted for not putting more detail if it's not required under illinois law which is which is the only place she could have filed this lawsuit in the private cause of action gave her the right to pursue a claim and only to state court an argument not a federal court only it only authorizes federal court lawsuit it's supplemental claim so i don't think that that's what the we ask this court to either affirm or adopt a clear rule that parties in the future can look to to know whether they have these kind of claims have article three standing thank you thank you very much mr wiley you were down to the did lose control over her biometric information given that that has been the interest that the illinois supreme court defined and the illinois legislature sought to protect that is a concrete and particularized harm to the legislative interest with respect to the last point as to whether there's a lack of pleading what the point it would have done again we we point the court back to  prior decision and robertson in which the court was very clear that that allegation is immaterial in that the real question is whether there is a loss of opportunity not whether the point if would have taken a say that then that a problem i certainly don't think that that helps her case but in concede this the real question was what injury had she suffered to that legislatively defined interest in the court ultimately held regard list of whether she would have acted differently that there was no false or misleading information provided and therefore no infringement on the statutory  interest finally but with respect to the the common law privacy interest we agree with amicus brief on this point but we also point out that there is not only a privacy interest defined and protected in the illinois statute there's also the informational and informed consent interest that's protected as well all right thank you very much mr wiley that will be it and thanks as well mr floury the court will take the case under advisement and