`
`
`
`In the
`United States Court of Appeals
`For the Seventh Circuit
`____________________
`
`No. 20-3249
`MELISSA THORNLEY, et al.,
`
`CLEARVIEW AI, INC.,
`
`Plaintiffs-Appellees,
`
`v.
`
`Defendant-Appellant.
`____________________
`
`Appeal from the United States District Court for the
`Northern District of Illinois, Eastern Division.
`No. 20-cv-3843 — Sharon Johnson Coleman, Judge.
`____________________
`
`ARGUED JANUARY 4, 2021 — DECIDED JANUARY 14, 2021
`____________________
`
`Before EASTERBROOK, WOOD, and HAMILTON, Circuit
`Judges.
`WOOD, Circuit Judge. Illinois’s Biometric Information Pri-
`vacy Act, familiarly known as BIPA, provides robust protec-
`tions for the biometric information of Illinois residents. See
`740 ILCS 14/1 et seq. It does so by regulating the collection,
`retention, disclosure, and destruction of biometric identifiers
`or information—for example, retinal scans, fingerprints, or fa-
`cial geometry. In recent years, the use of biometric data has
`
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`2
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`No. 20-3249
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`exploded. Predictably, that development has been followed
`by a spate of litigation testing the limits of the law’s protec-
`tions. Not all of those cases, however, have proven to be justi-
`ciable in federal court: some plaintiffs have failed to demon-
`strate that they have standing to sue as required by Article III
`of the Constitution.
`The question now before us is whether, on the allegations
`of the operative complaint, the plaintiffs—Melissa Thornley
`and others, on behalf of themselves and a proposed class—
`have shown standing. (For convenience, we refer only to
`Thornley, unless the context requires otherwise.) Oddly,
`Thornley insists that she lacks standing, and it is the defend-
`ant, Clearview AI, Inc., that is championing her right to sue in
`federal court. That peculiar line-up exists for reasons that only
`a civil procedure buff could love: the case started out in an
`Illinois state court, but Clearview removed it to federal court.
`Thornley wants to return to state court to litigate the BIPA
`claims, but Clearview prefers a federal forum. The case may
`stay in federal court, however, only if the more stringent fed-
`eral standards for standing can be satisfied; Illinois (as is its
`right) has a more liberal attitude toward the kinds of cases its
`courts are authorized to entertain. The district court held that
`Thornley has alleged only a bare statutory violation, not the
`kind of concrete and particularized harm that would support
`standing, and thus ordered the action remanded to the state
`court. Because the case meets the criteria of the Class Action
`Fairness Act, 28 U.S.C. § 1332(d), Clearview sought permis-
`sion to appeal from that order. See 28 U.S.C. § 1453(c). We
`agreed to take the appeal, § 1453(c)(1), and we now affirm the
`decision of the district court.
`
`
`
`No. 20-3249
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`3
`
`I
`Our description of the factual background of the case is
`necessarily brief because we have only the pleadings before
`us. We accept Thornley’s account for present purposes. Clear-
`view is in a business that would have been impossible to im-
`agine a generation ago. Founded in 2017, it designed a facial
`recognition tool that takes advantage of the enormous
`amount of information that floats around the Internet. Users
`may download an application (“App”) that gives them access
`to Clearview’s database.
`Clearview uses a proprietary algorithm to “scrape” pic-
`tures from social media sites such as Facebook, Twitter, Insta-
`gram, LinkedIn, and Venmo. The materials that it uses are all
`publicly available. The scraping process is not designed, how-
`ever, simply to store photographs. Instead, Clearview’s soft-
`ware harvests from each scraped photograph the biometric
`facial scan and associated metadata (for instance, time and
`place stamps), and that information is put onto its database.
`The database, which is stored on servers in New York and
`New Jersey, at this point contains literally billions of entries.
`Clearview offers access to this database for users who
`wish to find out more about someone in a photograph—per-
`haps to identify an unknown person, or perhaps to confirm
`the identity of a person of interest. Many, though not all, of its
`clients are law-enforcement agencies. The user purchases ac-
`cess to Clearview’s resources and, using the App, uploads her
`photograph to its site. Clearview then creates a digital facial
`scan of the person in the photograph and compares the new
`facial scan to those in its vast database. If it finds a match, it
`returns a geotagged photograph (not the facial scan) to the
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`No. 20-3249
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`user, and it informs the user of the source social-media site for
`the photograph.
`In the beginning, Clearview appears to have kept a rather
`low profile. But on January 18, 2020, The New York Times pub-
`lished an article about Clearview and its extensive database.
`See Kashmir Hill, “The Secretive Company That Might End
`Privacy as We Know It,” The New York Times, Jan. 18, 2020,
`https://www.nytimes.com/2020/01/18/technology/clearview-
`privacy-facial-recognition.html. A rash of lawsuits followed
`in the wake of the article. See, e.g., Mutnick v. Clearview AI, Inc.,
`No. 1:20-cv-00512 (N.D. Ill.); Roberson v. Clearview AI, Inc., No.
`1:20-cv-00111 (E.D. Va.); Calderon v. Clearview AI, Inc., No.
`1:20-cv-01296 (S.D.N.Y.); Burke v. Clearview AI, Inc., No. 3:20-
`cv-00370 (S.D. Cal.). This case was one of them. Notably,
`Thornley did not choose a federal forum; instead, she filed her
`case in state court—specifically, the Circuit Court of Cook
`County. Her initial complaint, filed on behalf of herself and a
`class on March 19, 2020, asserted violations of three subsec-
`tions of BIPA: 740 ILCS 14/15(a), (b), and (c). (We explain be-
`low the scope of each of these provisions.) Clearview re-
`moved that case to federal court, see 28 U.S.C. § 1441, but
`shortly after the removal Thornley voluntarily dismissed the
`action.
`In certain circumstances, met here, plaintiffs are entitled to
`take that action without leave of court should they so desire.
`See FED. R. CIV. P. 41(a)(1). Granted, if the plaintiff previously
`has dismissed either a federal- or a state-court action based on
`the same claim, “a notice of dismissal operates as an adjudi-
`cation on the merits.” Id. Rule 41(a)(1)(B). Thornley, however,
`had taken no such earlier action, and so her dismissal was
`without prejudice. She was thus within her rights when she
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`No. 20-3249
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`5
`
`returned to the Circuit Court of Cook County on May 27,
`2020, with a new, significantly narrowed, action against
`Clearview. The new action was more focused in two respects:
`first, it alleged only a violation of BIPA § 15(c), 740 ILCS
`14/15(c); and second, the class definition was much more
`modest. Clearview again removed the case to the federal
`court. This time, Thornley filed a motion to remand, see 28
`U.S.C. § 1447(c), in which she asserted that the violation of
`section 15(c) she described was only a “bare procedural vio-
`lation, divorced from any concrete harm,” see Spokeo, Inc. v.
`Robbins, 136 S. Ct. 1540, 1549 (2016), and thus did not support
`Article III standing. As we noted earlier, the district court
`agreed with her and ordered the case remanded to state court.
`II
`Ordinarily, it is the plaintiff who bears the burden of
`demonstrating that the district court has subject-matter juris-
`diction over her case and that it falls within “the Judicial
`Power” conferred in Article III. But more generally, the party
`that wants the federal forum is the one that has the burden of
`establishing the court’s authority to hear the case. See Schur v.
`L.A. Weight Loss Centers, Inc., 577 F.3d 752, 758 (7th Cir. 2009);
`Brill v. Countrywide Home Loans, Inc., 427 F.3d 446, 447 (7th Cir.
`2005). As applied here, that means that Clearview must show
`that Thornley (as well as her co-plaintiffs) has Article III
`standing.
`The Supreme Court’s most recent restatement of the rules
`governing standing appears in Thole v. U.S. Bank N.A., 140 S.
`Ct. 1615 (2020):
`To establish standing under Article III of the Con-
`stitution, a plaintiff must demonstrate (1) that he or she
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`6
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`No. 20-3249
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`suffered an injury in fact that is concrete, particular-
`ized, and actual or imminent, (2) that the injury was
`caused by the defendant, and (3) that the injury would
`likely be redressed by the requested judicial relief.
`Id. at 1618, citing Lujan v. Defenders of Wildlife, 504 U.S. 555,
`560–61 (1992). See also Spokeo, 136 S. Ct. at 1547. In the case
`before us, there is no serious dispute about the second and
`third of those requirements: whatever injury Thornley suf-
`fered occurred at Clearview’s hands, and one can imagine a
`number of ways in which that injury could be remedied by a
`court. We say this not because the parties have agreed on
`those points. No such agreement would be binding on the
`court. But the record tells us enough about the nature and
`source of the injury to support this conclusion. We thus focus
`exclusively on the injury-in-fact requirement.
`This appeal is far from our first encounter with BIPA,
`though we have not had occasion in the past to consider sec-
`tion 15(c). Our earlier cases, however, provide important con-
`text for our consideration of the standing issue presented
`here, and so we take a moment to review their central hold-
`ings.
`The first in this line was Miller v. Southwest Airlines Co., 926
`F.3d 898 (7th Cir. 2019). The immediate question was whether
`employees of Southwest Airlines who contended that the
`company had violated BIPA in the operation of its timekeep-
`ing system had to present their claims to an adjustment board,
`as spelled out in the Railway Labor Act, or if the court was the
`proper forum. Id. at 900. Before the court could reach that is-
`sue, however, it had to decide whether the employees had
`standing under Article III to pursue the litigation. It con-
`cluded that they did. If there were some problem in the use of
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`No. 20-3249
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`7
`
`the timekeeping system, it would be possible for either an ad-
`justment board or a court to remedy that problem:
`The prospect of a material change in workers’ terms
`and conditions of employment gives these suits a con-
`crete dimension that Spokeo, Groshek [v. Time Warner
`Cable, Inc., 865 F.3d 884 (7th Cir. 2017)], and Casillas [v.
`Madison Ave. Assocs., Inc., 926 F.3d 329 (7th Cir. 2019)]
`lacked. Either the discontinuation of the practice, or the
`need for the air carriers to agree to higher wages to in-
`duce unions to consent, presents more than a bare pro-
`cedural dispute. See Robertson v. Allied Solutions, LLC,
`902 F.3d 690, 697 (7th Cir. 2018) (“Article III’s strictures
`are met not only when a plaintiff complains of being
`deprived of some benefit, but also when a plaintiff
`complains that she was deprived of a chance to obtain
`a benefit.”).
`Id. at 902. The Miller opinion did not distinguish further
`among the various subsections of BIPA § 15.
`We returned to BIPA in Bryant v. Compass Group USA, Inc.,
`958 F.3d 617 (7th Cir. 2020). There the plaintiff’s employer had
`installed in its cafeteria some “Smart Market” vending ma-
`chines owned by the defendant, Compass Group. In order to
`use the machines, a patron had to establish an account using
`her fingerprint. Section 15(a) of BIPA requires collectors of bi-
`ometric information to make publicly available a retention
`schedule and guidelines for permanently destroying the in-
`formation they obtain. Section 15(b) of BIPA requires the col-
`lector to inform those from whom it is collecting information
`that it is doing so, and to disclose the purpose of the collection
`and the length of the retention. It also requires the collector to
`obtain written consent from the affected person. Bryant
`
`
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`8
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`No. 20-3249
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`alleged that Compass had violated both section 15(a) and
`15(b), 740 ILCS 14/15(a), (b).
`Our decision hewed closely to the facts and allegations be-
`fore us. As amended on the petition for rehearing, the opinion
`emphasized that Bryant’s claim under section 15(a) rested ex-
`clusively on Compass’s failure to develop a “written policy,
`made available to the public, establishing a retention schedule
`and guidelines for permanently destroying biometric identi-
`fiers and biometric information[.]’’ Id. § 15(a). We found that
`this duty is “owed to the public generally, not to particular
`persons whose biometric data the entity collects.” 958 F.3d at
`626. In other words, Bryant’s injury in this respect was not
`particularized, and thus it did not demonstrate injury-in-fact
`for Article III purposes. We left open the question whether a
`different allegation under section 15(a)—one based on the
`language requiring a collector to comply with its established
`retention and destruction criteria—might call for a different
`result. Finally, we found that Bryant’s allegations that Com-
`pass had violated section 15(b)’s requirement both to inform
`those from whom it was collecting data that it was doing so
`and why, and to obtain their written consent, was both con-
`crete and particularized, and thus were enough to support
`standing.
`The question under section 15(a) that we reserved in Bry-
`ant did not remain unexamined for long. In Fox v. Dakkota In-
`tegrated Systems, LLC, 980 F.3d 1146 (7th Cir. 2020), plaintiff
`Fox contended that Dakkota, her former employer, had vio-
`lated section 15(a) by failing to comply with its data retention
`and destruction policies. As in this case, Fox had initiated her
`action in state court, Dakkota had removed to federal court,
`and the question before us was whether the case had to be
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`No. 20-3249
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`9
`
`remanded to state court on Article III standing grounds. After
`reviewing many of the same cases we have highlighted here,
`we concluded that “[a]n unlawful retention of biometric data
`inflicts a privacy injury in the same sense that an unlawful
`collection does.” Id. at 1154. We thus held that “an unlaw-
`ful retention of a person’s biometric data is as concrete and
`particularized an injury as an unlawful collection of a person’s
`biometric data. If the latter qualifies as an invasion of a ‘pri-
`vate domain, much like an act of trespass would be,’ Bryant,
`958 F.3d at 624, then so does the former.” Id. at 1155. We thus
`reversed the district court’s order sending the case back to
`state court and remanded for further proceedings.
`Two other points are important to understanding our ap-
`proach to these cases. First, an important corollary to the rule
`that injury-in-fact must be both concrete and particularized,
`see Spokeo, 136 S. Ct. at 1548–49, is the requirement that “the
`plaintiff must clearly allege facts demonstrating each ele-
`ment.” Id. at 1547 (cleaned up). In other words, allegations
`matter. One plaintiff may fail to allege a particularized harm
`to himself, while another may assert one. For example, in
`Casillas (which dealt with the Fair Debt Collection Practices
`Act, not BIPA), we gave dispositive weight to the fact that the
`plaintiff had not pleaded that her receipt of a letter that alleg-
`edly failed to comply with the statute had caused her any
`harm—indeed, had any effect whatsoever on her. 926 F.3d at
`334–35. As the case reached us, “Casillas had no more use for
`the notice than she would have had for directions accompa-
`nying a product that she had no plans to assemble.” Id. at 334.
`That was not enough to support her standing to sue, but noth-
`ing in the opinion implied that every recipient of a similarly
`nonconforming letter would be in the same position. Simi-
`larly, as the difference between the treatment of section 15(a)
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`No. 20-3249
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`in Bryant and Fox illustrates, the result of the standing inquiry
`for the identical section of a statute will depend on what that
`section provides and what the plaintiff has alleged.
`Second, the fact that a “bare procedural violation” does
`not suffice to support an injury-in-fact made some people
`wonder whether there is a distinction between alleged proce-
`dural injuries and alleged substantive injuries. We clarified in
`Larkin v. Finance System of Green Bay, Inc., 982 F.3d 1060, 1066
`(7th Cir. 2020), that no such line exists. Article III must be sat-
`isfied no matter what kind of violation is asserted.
`III
`Thornley’s complaint raises only one claim under BIPA:
`that Clearview violated section 15(c). (The fact that she had
`filed the earlier action and then voluntarily dismissed it is of
`no legal relevance, except for purposes of the two-dismissal
`rule, which has not been triggered here.) That subpart reads
`as follows:
`(c) No private entity in possession of a biometric
`identifier or biometric information may sell, lease,
`trade, or otherwise profit from a person’s or a cus-
`tomer’s biometric identifier or biometric information.
`740 ILCS 14/15(c). Thornley and her co-plaintiffs, Deborah
`Benjamin-Koller and Josue Herrera, all of whom maintained
`social media accounts on sites such as Facebook, Instagram,
`LinkedIn, Venmo, and YouTube, filed their complaint in the
`state court on behalf of themselves and as representatives of
`the following class:
`All current Illinois citizens whose biometric identifiers
`or biometric information were [sic], without their
`knowledge, included in the Clearview AI Database at
`
`
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`No. 20-3249
`
`11
`
`any time from January 1, 2016 to January 17, 2020 (the
`“Class Period”) and who suffered no injury from De-
`fendant’s violation of Section 15(c) of BIPA other than
`statutory aggrievement … .
`Similarly, the complaint concedes that none of the named
`plaintiffs, and no class member, “suffered any injury as a re-
`sult of the violations of Section 15(c) of BIPA other than the
`statutory aggrievement alleged in Paragraph 38.” Complaint,
`¶ 39.
`Taking the position that these allegations did not suffice to
`show a lack of Article III standing, Clearview removed the
`case to federal court. The district court saw things differently.
`Noting that a plaintiff is the master of her own complaint, the
`court held that the particular allegations before it raised ques-
`tions only about a general regulatory rule found in BIPA: no
`one may profit in the specified ways from another person’s
`biometric identifiers or information.
`On appeal, Clearview urges us to equate a person’s poten-
`tial injury from the sale (or lease, etc.) of her data with the in-
`jury from retention of that data that we recognized in Fox, or
`the injury we recognized in Bryant from the collection of that
`data and the failure to obtain written consent. We have no
`quarrel with the idea that a different complaint might reflect
`that type of equivalence. A plaintiff might assert, for example,
`that by selling her data, the collector has deprived her of the
`opportunity to profit from her biometric information. Or a
`plaintiff could assert that the act of selling her data amplified
`the invasion of her privacy that occurred when the data was
`first collected, by disseminating it to some unspecified num-
`ber of other people. Perhaps a plaintiff might assert that the
`scraping of data from social media sites raises the cost of
`
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`12
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`No. 20-3249
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`using those sites in some respect (though they are nominally
`free, in the same sense that network television or conventional
`radio is free—ads pay for these outlets, and the viewers are
`the “product” that the advertiser is buying).
`Without any such allegations of concrete and particular-
`ized harm to the plaintiffs, we are left with a general rule that
`prohibits the operation of a market in biometric identifiers
`and information. If it is not profitable to collect or hold that
`data, one can assume that the incentive to collect it or hold it
`will be significantly reduced. Much the same rationale sup-
`ports other laws that are directed against market transactions.
`Regulations implementing the Eagle Protection Act and the
`Migratory Bird Treaty Act, for example, permit the possession
`or transportation of certain migratory birds, and their parts,
`nests, or eggs, but they state that these items “may not be im-
`ported, exported, purchased, sold, bartered, or offered for
`purchase, sale, trade, or barter.” Andrus v. Allard, 444 U.S. 51,
`54 (1979) (citing 50 C.F.R. § 21.2(a) (1978)). The Supreme Court
`understood this as a regulatory prohibition against commerce
`in the covered birds and bird parts, and it upheld the regula-
`tions. A similar rationale lay behind the Court’s decision in
`Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), to uphold
`a prohibition on child pornography produced with real chil-
`dren on the ground that it furthers the government’s effort to
`eliminate the market for such material. Id. at 254. (At the same
`time, the Court held that the market-deterrence theory did not
`save a prohibition against materials created with computer-
`ized images or young-looking adults. But that was because
`the underlying conduct could not be criminalized consist-
`ently with the First Amendment.)
`
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`No. 20-3249
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`13
`
`Section 15(c) of BIPA is another such statute, albeit one en-
`acted by Illinois rather than the federal government. It ad-
`dresses only the regulated entity—the collector or holder of
`the biometric data—and flatly prohibits for-profit transac-
`tions. No one in this case has asked us to decide whether this
`prohibition violates some other law, such as the Takings
`Clause, substantive due process, or a federal statute, and so
`we express no opinion on any such theory. For our purposes,
`it is enough to say that this is the same kind of general regu-
`lation as the duty to create and publish a retention and de-
`struction schedule found in section 15(a), at least when the
`plaintiff asserts no particularized injury resulting from the
`commercial transaction. See Bryant, 958 F.3d at 626.
`One final question remains: may the plaintiffs, by seeking
`to represent a class that includes only persons who suffered
`no injury from the alleged violation of section 15(c), prevent
`the district court from taking a broader view of the case? We
`wondered whether such a holding would be consistent with
`the Supreme Court’s decision in Standard Fire Insurance Co. v.
`Knowles, 568 U.S. 588 (2013). That case involved a putative
`class action that was commenced in an Arkansas state court
`against Standard Fire; plaintiffs alleged that underpayments
`had injured “hundreds, and possibly thousands” of policy-
`holders. Id. at 591. Relying on the Class Action Fairness Act,
`which confers jurisdiction on the district courts in cases where
`minimal diversity exists and the amount in controversy ex-
`ceeds $5,000,000, 28 U.S.C. § 1332(d)(2), Standard Fire re-
`moved the action to the district court. Once it was there, but
`before class certification, the plaintiff filed a statement stipu-
`lating that he and the class would not seek damages in excess
`of $5,000,000. On the basis of that stipulation, plaintiff then
`
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`14
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`No. 20-3249
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`sought to have the case remanded to state court for lack of
`jurisdiction.
`The Supreme Court held that the stipulation was not, and
`could not be, binding on the plaintiff class, and thus that it
`was ineffective to defeat the removal. It explained that “a
`plaintiff who files a proposed class action cannot legally bind
`members of the proposed class before the class is certified.”
`Id. at 593. Because the district court had not evaluated the ad-
`equacy of the amount in controversy independently from the
`stipulation, the Court remanded for further proceedings.
`The situation in Thornley’s case is different. She does not
`contest either the existence of minimal diversity (she is a citi-
`zen of Illinois, and Clearview is a citizen of Delaware and
`New York) or the fact that more than $5,000,000 is at stake.
`Instead, she has simply offered a class definition that is nar-
`rower than it might have been. We have no reason to believe
`that the district court, acting on its own initiative, would cer-
`tify a different and broader class; to that extent, the rule that
`the plaintiff controls her own case applies. And unlike the sit-
`uation in Standard Fire, people who fall outside Thornley’s
`class definition are totally unaffected by this litigation. If they
`wish to sue Clearview, either alone or under a class definition
`that includes an allegation of injury, they are free to do so.
`Indeed, as we noted earlier, there are a number of class actions
`pending against Clearview, many of which appear to be
`broader than this one. We know of nothing that would pre-
`vent a putative class representative from taking a conserva-
`tive approach to class definition. And if the plaintiffs change
`their tune in the state court, Clearview will be able to attempt
`to remove again to federal court, though we do not predict the
`outcome of such an effort. See 28 U.S.C. § 1446(b)(3), (c).
`
`
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`No. 20-3249
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`15
`
`IV
`Our job is to decide whether Thornley and her co-plaintiffs
`have Article III standing to pursue the case they have pre-
`sented in their complaint. We have concluded that they do
`not: they have described only a general, regulatory violation,
`not something that is particularized to them and concrete. It
`is no secret to anyone that they took care in their allegations,
`and especially in the scope of the proposed class they would
`like to represent, to steer clear of federal court. But in general,
`plaintiffs may do this. As long as their allegations are in good
`faith, they may include non-diverse parties as defendants.
`Outside of the clumsily named area of “complete preemp-
`tion,” they may choose to rely exclusively on state law and
`avoid federal-question jurisdiction. And here, they may take
`advantage of the fact that Illinois permits BIPA cases that al-
`lege bare statutory violations, without any further need to al-
`lege or show injury. See Rosenbach v. Six Flags Entertainment
`Corp., 2019 IL 123186 ¶¶ 22–23.
`We express no opinion on the adequacy of Thornley’s
`complaint as a matter of Illinois law. That will be for the state
`court to address. We hold only that on the basis of the allega-
`tions of this complaint, the district court correctly decided
`that Thornley and the other plaintiffs did not present a case
`that lies within the boundaries set by Article III, and so the
`court properly remanded the case to the state court.
`AFFIRMED.
`
`
`
`16
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`No. 20-3249
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`HAMILTON, Circuit Judge, concurring. I join Judge Wood’s
`careful and persuasive opinion for the panel. I write sepa-
`rately to emphasize a critical point in the panel opinion and
`to add two broader cautions about standing issues under con-
`sumer-protection statutes.
`First, our decision has been determined by the choices that
`these plaintiffs have made to narrow both their claims and the
`scope of their proposed class. Judge Wood’s opinion recog-
`nizes that other plaintiffs might well establish standing for
`other alleged violations of Section 15(c). Ante at 11–12. Add to
`those possibilities a person who has consented to collection,
`retention, and use of her biometric information, perhaps for
`non-profit scientific research, but who objects to the sale of her
`data to a third party. The resulting injury in such cases would
`be comparable to injuries in invasion-of-privacy and unjust-
`enrichment cases that the law has long recognized. See Re-
`statement (Second) of Torts § 652C (1977) (appropriation of
`another’s name or likeness for one’s own use or benefit); Re-
`statement of Restitution § 136 (1937) (“A person who has tor-
`tiously used a trade name, trade secret, franchise, profit a
`prendre, or other similar interest of another, is under a duty
`to restitution for the value of the benefit received thereby.”);
`see also Robertson v. Allied Solutions, LLC, 902 F.3d 690, 697 (7th
`Cir. 2018) (plaintiff may show standing by alleging she was
`deprived of a benefit but also by alleging she was deprived of
`a chance to obtain a benefit). In fact, the misuse of a person’s
`biometric information presents an especially dangerous mod-
`ern version of these traditional injuries. A victim of identity
`theft can obtain a new email address or even Social Security
`number, but “biometric identifiers … are immutable, and
`once compromised, are compromised forever.” Fox v. Dakkota
`Integrated Systems LLC, 980 F.3d 1146, 1155 (7th Cir. 2020)).
`
`
`
`No. 20-3249
`
`17
`
`Second, the opinion’s emphasis on the allegations of these
`plaintiffs has a procedural corollary. Standing is an issue that
`federal courts have an obligation to raise in any civil case.
`When the trial or appellate court raises questions about the
`sufficiency of a plaintiff’s allegations to plead standing, fair-
`ness requires the court to give the plaintiff a reasonable op-
`portunity to elaborate on her initial allegations. See, e.g., Lar-
`kin v. Finance System of Green Bay, Inc., 982 F.3d 1060, 1066 (7th
`Cir. 2020) (explaining opportunities for plaintiff’s attorney to
`identify injury to support standing under Fair Debt Collection
`Practices Act); Doermer v. Callen, 847 F.3d 522, 526 (7th Cir.
`2017) (affirming dismissal for lack of standing where plaintiff
`never took opportunities to offer amended complaint or to ex-
`plain possible amendments to remedy lack of standing).
`Third, the briefs in this case address very recent decisions
`by this court finding that private plaintiffs lacked standing
`when they alleged intangible harm based on violations of
`other consumer-protection statutes. See Nettles v. Midland
`Funding, LLC, — F.3d —, 2020 WL 7488610 (7th Cir. Dec. 21,
`2020) (FDCPA); Bazile v. Finance System of Green Bay, Inc., —
`F.3d —, 2020 WL 7351092 (7th Cir. Dec. 15, 2020) (FDCPA);
`Spuhler v. State Collection Service, Inc., — F.3d —, 2020 WL
`7351098 (7th Cir. Dec. 15, 2020) (FDCPA); Gunn v. Thrasher,
`Buschmann & Voelkel, P.C., 982 F.3d 1069 (7th Cir. 2020)
`(FDCPA); Brunett v. Convergent Outsourcing, Inc., 982 F.3d 1067
`(7th Cir. 2020) (FDCPA); Larkin, 982 F.3d at 1066; Groshek v.
`Time Warner Cable, Inc., 865 F.3d 884 (7th Cir. 2017) (Fair Credit
`Reporting Act). The most recent cases under the Fair Debt
`Collection Practices Act rely on our decision creating a circuit
`split in Casillas v. Madison Avenue Associates, Inc., 926 F.3d 329,
`335–36 (7th Cir. 2019), disagreeing with Macy v. GC Services
`Ltd. P’Ship, 897 F.3d 747 (6th Cir. 2018); see also Casillas, 926
`
`
`
`18
`
`No. 20-3249
`
`F.3d at 339–43 (Wood, C.J., dissenting from denial of en banc
`review).
`On the other side of this issue over standing for intangible
`harms to consumers, see our previous cases under the Bio-
`metric Information Privacy Act discussed in Judge Wood’s
`opinion, including Fox v. Dakkota Integrated Systems, LLC, 980
`F.3d 1146 (7th Cir. 2020); Bryant v. Compass Group USA, Inc.,
`958 F.3d 617 (7th Cir. 2020); and Miller v. Southwest Airlines
`Co., 926 F.3d 898 (7th Cir. 2019), as well as Gadelhak v. AT&T
`Services, Inc., 950 F.3d 458, 462–63 (7th Cir. 2020) (unwelcome
`text messages under Telephone Consumer Protection Act),
`and Lavallee v. Med-1 Solutions, 932 F.3d 1049, 1053 (7th Cir.
`2019) (omitted notice of rights under FDCPA). I confess that I
`have not yet been able to extract from these different lines of
`cases a consistently predictable rule or standard.
`Much of the debate over standing in these cases stems
`from the Supreme Court’s decision in Spokeo, Inc. v. Robins,
`136 S. Ct. 1540 (2016), a decision on standing under the Fair
`Credit Reporting Act. The Court told us that standing requires
`“concrete” injury but that “intangible injuries can neverthe-
`less be concrete.” Id. at 1548–49. This Delphic instruction
`raised more questions than it answered. Many arise under
`federal consumer-protection statutes that use common regu-
`latory techniques: ensure that the consumer/debtor/bor-
`rower/investor/retiree has accurate and reliable information
`for her decisions, and require specific procedures, including
`notice and opportunity to respond before adverse action is
`taken that may affect her.
`The lower federal courts have already spilled a great deal
`of ink interpreting the Supreme Court’s statement in Spokeo
`
`
`
`No. 20-3249
`
`19
`
`that the plaintiff could not satisfy Article III standing “by al-
`leging a bare procedural violation.” Id. at 1550. Given the
`number of cases in this and other lower courts finding only
`“bare procedural violations,” it is worth emphasizing that the
`only example the Court actually provided was utterly trivial:
`an incorrect zip code in the information about a debtor under
`the Fair Credit Reporting Act.
`At the same time, Spokeo taught that “both history and the
`judgment of Congress play important roles” in determining
`whether an intangible injur
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