Biometric info center of truckers’ lawsuit against Union Pacific

Union Pacific Railroad must face a class action lawsuit filed by truckers alleging the company violated the Illinois Biometric Information Privacy Act.

In March, an Illinois federal district court denied Union Pacific’s motion to dismiss a case filed by David Fleury, a trucker who frequently visited railyards owned by the company. The case deals with biometric information collected by Union Pacific for identity verification.

According to the first amended complaint, Fleury visited several railyards as part of his duties as a truck driver. When accessing Union Pacific’s facilities, Fleury and other similarly situated drivers were required to scan their biometric identifiers into biometrically enabled identity kiosks. According to Illinois state law, “biometric identifier” includes retina or iris scans, fingerprints, voiceprints and scans of hand or facial geometry. Illinois law defines “biometric information” as “any information based on a biometric identifier.”

Fleury claims that although Union Pacific collected, captured or otherwise obtained biometric identifiers and biometric information of drivers, the rail company never informed them in writing that it was collecting or storing that information.

Consequently, the rail company failed to acquire written consent from drivers to collect such information.

Illinois’ Biometric Information Privacy Act states that companies like Union Pacific cannot collect, capture, purchase or otherwise obtains an individual’s biometrics unless the following criteria are met:

• Informs that person in writing that biometric identifiers or biometric information will be collected or stored.
• Informs that person in writing of the specific purpose and the length of term for which such biometric identifiers or biometric information is being collected, stored and used.
• Receives a written release from the person for the collection of their biometric identifiers or biometric information.

The biometrics law also requires Union Pacific to have a publicly available written policy outlining the storage and destruction policies of biometric information. Furthermore, companies are prohibited from profiting off of someone’s biometric identifiers or information without informed consent.

Fleury claims that Union Pacific met none of the above requirements. The lawsuit states that there are at least thousands of drivers affected by the alleged infractions. Union Pacific is being accused of one count of violating the Illinois Biometric Information Privacy Act.

According to court documents, Union Pacific added a “disclosure and consent” virtual form to the kiosks after Fleury filed the lawsuit. Fleury signed that form in June 2020. The complaint was originally filed in a state circuit court in December 2019. It was moved to the federal district court in January 2020.

Federal regulations do not preempt state biometrics law

In its motion to dismiss, Union Pacific argues that that Illinois’ biometrics law is preempted by both the Federal Railroad Safety Act and the Interstate Commerce Commission Termination Act.

Enacted by Congress to “promote safety in every area of railroad operations and reduce railroad-related accidents and incidents,” the Federal Railroad Safety Act gives the Department of Transportation secretary and Homeland Security secretary the power to issue regulations relating to railroad safety and railroad security. An exemption clause in the act states “a state may adopt or continue in force a law, regulation, or order related to railroad safety or security until the secretary of Transportation (with respect to railroad safety matters), or the secretary of Homeland Security (with respect to railroad security matters), prescribes a regulation or issues an order covering the subject matter of the state requirement.”

In this case, Union Pacific claims the Department of Homeland Security has issued regulations and standards that cover the subject of using biometric information as a security measure to access railroad facilities.

Specifically, DHS regulations require those hauling hazardous materials to use “physical security measures to ensure no unauthorized individuals gain access” to certain secure areas.

Another regulation requires companies shipping hazardous materials to develop and follow a transportation security plan that fulfills certain requirements. Union Pacific claims it fulfills the “transportation security plan” requirement through its membership in DHS’s Customs-Trade Partnership Against Terrorism.

However, the federal court disagreed. The state law’s subject matter is how biometric information is collected and used to address potential harms inflicted on the public, such as identity theft. Conversely, DHS regulations do not even mention the collection or storage of biometric information. Rather, they discuss what railroads need for security measures.

Regarding the Interstate Commerce Commission Termination Act, Congress created the Surface Transportation Board, which has exclusive jurisdiction over rail transportation regulations. That jurisdiction preempts:

• Transportation by rail carriers, and the remedies provided with respect to rates, classifications, rules (including car service, interchange, and other operating rules), practices, routes, services, and facilities of such carriers.
• The construction, acquisition, operation, abandonment, or discontinuance of spur, industrial, team, switching, or side tracks, or facilities, even if the tracks are located, or intended to be located, entirely in one state.

Union Pacific argues the biometrics law amounts to regulation of rail transportation. Again, the federal court found the preemptions do not apply because the state law “has nothing to do with regulating rail transportation.”

“BIPA imposes no restrictions on the movement of property by rail nor on the receipt of property at railroad facilities,” the court states. “Rather, it imposes disclosure, consent, and recordkeeping requirements related … certain types of information.”

As of publication, Union Pacific has not filed an appeal. LL

Related story:

• Fingerprint lawsuit filed by truckers hauling CSX freight.