Walgreens and Kroger Sued for Using Cameras with Facial Recognition

by Anthony Tacconi

Most shoppers at Walgreens and Kroger would be unaware that these companies have been quietly rolling out facial scanning and recognition technology at many of their stores. Walgreens has allegedly been collecting facial recognition data at the entrances to select stores and storing the biometric data of its customers. A lawsuit recently filed under the Illinois Biometric Information Privacy Act (BIPA) alleges, among other things, that the company did not properly inform customers that it was collecting such data, failed to obtain consent, and failed to provided information concerning the retention and destruction of the data. Illinois is one of a handful of states that has enacted a comprehensive statutory scheme to regulate the collection, retention, and destruction of biometric data so it was a prime location for this sort of data privacy suit.

While Walgreens has not yet responded to the allegations, this is not Walgreens’ first brush with data privacy complaints. In 2019, Walgreens announced that they were installing smart coolers at test locations. The smart coolers included facial scanners which were designed to “guess” the age and gender of customers peering into the coolers and then present targeted or custom ads, on a digital screen alongside the cooler, based upon the “guessed” characteristics.

Walgreens is not alone in its data collection endeavors. Kroger was also sued recently in Illinois, again under the BIPA, for allegedly using facial recognition software illegally in a number of stores. The number of lawsuits alleging improper or illegal conduct in this area will only continue to grow as biometric data collection is becoming more ubiquitous and, in some cases, more surreptitious, every day.

If your business model includes the collection of facial recognition data or other biometric data of customers, it is essential that you thoroughly, and continually, review and assess your activities to ensure compliance with the evolving law in this area.

If you have questions concerning biometric data collection, usage and storage, please contact Anthony Tacconi at (804) 565-5957 or atacconi@goodmanallen.com.