Legal Decisions Kiosks, Biometrics, Privacy

By | August 29, 2022
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ADA Accessibility Self-Service Kiosks

Self-Service and Kiosk Legal Decisions

This page on legal decisions in self-service and related is a running log with personal commentary on legal, privacy and patent situations which impact unattended self-service.  We keep track of legal news that affects the unattended self-service market.  One of the best articles to monitor is Kiosk Accessibility: The Law is Paying Attention by Lainey Feingold. Another great source is Understanding The ADA blog by William Goren.

Legal actions can also be HIPAA violations of privacy data and also web accessibility (WCAG usually), which have financial and legal consequences.  If you have news of note send us an email at [email protected]

Notable Legal Decisions and Related In Brief:

  • November 2024
    • Biometric lawsuit regarding shoplifting cameras moving ahead against Target. According to the lawsuit, Target uses surveillance cameras with facial recognition technology to monitor shoplifting. The plaintiffs claim that Target failed to inform customers in writing or obtain their consent before collecting biometric data. They also allege that Target did not disclose how the data is used, how long it is stored, or whether it is shared with third parties.
  • September 2024
  • June 2024
    • Kroger settles for 11 million in biometrics suit. Defendant has agreed to create a Settlement Fund for the Class Members in the amount of $11,782,800.00.  Link to settlement
    • Accessibe is being sued for false promises.  A high profile accessibility widget company made a lot of claims. Apparently someone is calling them out on not delivering what they promised. Key here is that this is a breach of contract sounding claim at heart. Essentially, the claim is that the buyer didn’t get what was promised or represented to them. Accordingly, it doesn’t matter that WCAG is not enshrined in law, though it sort of is for title II entities. The proposed class could include title II entities. See page 21 of complaint.
  • Feb 2024
    • Get our Advance Regulatory Advisory at HIMSS in March — our best guess on what to expect in June/July
    • Lainey Feingold update on Labcorp and Quest Diagnostics
    • Labcorp and Quest Diagnostics developments. Can proceed as national class action for injunctive relief.
    • Dot up for another innovation award this time at SXSW. Tactile Pad for braille uses modern tech from Texas Instruments. Braille Innovation Awards SXSW – Braille Dot Pad
    • California Bitcoin Machines — Effective January 1, 2024, Senate Bill 401 (Chapter 871, Statutes of 2023), (“SB 401” which, alongside AB 39, constitutes the “Digital Financial Assets Law”) requires a digital financial asset transaction kiosk operator (“kiosk operator”) to provide the Department of Financial Protection and Innovation (“Department”) with a list of all locations of kiosks that the operator owns, operates, or manages in California.
    • Federal Register News — Introduction to the Unified Agenda of Federal Regulatory and Deregulatory Actions. Additionally, the Department has issued a proposed rule addressing discrimination on the basis of disability in health and human services  programs or activities. This rule would revise regulations under section 504 of the Rehabilitation Act of 1973 to address unlawful discrimination on the basis of disability in HHS-funded health and human services programs. The proposed rule includes new requirements prohibiting discrimination in the areas of medical treatment; the use of value assessments; web, mobile, and kiosk accessibility; and requirements for accessible medical equipment, so that persons with disabilities have an
      opportunity to participate in or benefit from health care programs and activities that is equal to the opportunity afforded
      others. 
  • December 2023
  •  August
  •  July
    • Lowes self-checkout and cash back on debit card back in litigation
    • Voice recognition — GeoSymm Ventures LLC—an entity connected with a figure familiar in patent monetization circles—has initiated its first litigation over a portfolio of patents that the plaintiff received from Allied Security Trust (AST) in early June. In separate Eastern District of Texas complaints, GeoSymm accuses IBM (2:23-cv-00325) and Samsung (2:23-cv-00324) of infringing a single patent generally related to responding to a user request using “semantic web services” through the provision of their respective voice assistant platforms. At issue are features related to natural language processing and voice commands. In a third complaint, filed against PTC (6:23-cv-00493) in the Western District of Texas, the plaintiff asserts three patents generally related to using “digitally encoded markers” to position an overlay image in an augmented reality (AR) interface. The defendant is targeted over its mobile app, with features for positioning objects in an AR space at issue.
  • June 2023
    • Biometrics BIPA – $425K PetSmart BIPA Deal Receives Illinois Judge’s Initial OK — workers say they were required to use a voice-tracking headset without first providing informed consent.
    • PSA on upcoming actions by the U.S. Access Board as well as recent release by ANSI.org of EV guidelines which include accessibility
    • ADA & AI — EEOC’s Artificial Intelligence Guidelines and the Risk of Class Action Litigation – Link
    • PSA – updates on ADA for POS, EV, Kiosks and more + new EV standards doc from ANSI issued today. July was but now Sept  is the first upcoming date (EV).
    • Supreme Court to hear ADA case –Lawyers claimed that Laufer had filed over 600 lawsuits since 2018 targeting small hotels and bed and breakfasts and that the cost of litigating a case might put defendants into bankruptcy. “A cottage industry has arisen in which uninjured plaintiffs lob ADA lawsuits of questionable merit while using the threat of attorney’s fees to extract settlement payments,” Acheson’s lawyers said.
  • Apr 2023
    • Biometrics and Illinois – Christian Dior’s virtual “try on” glasses wins in Illinois under BIPA and facial recognition. Link
    • ADA Tester of Hotels SCOTUS to rule on — In the court papers, Acheson’s lawyers claimed that Laufer had filed over 600 lawsuits since 2018 targeting small hotels and bed and breakfasts and that the cost of litigating a case might put defendants into bankruptcy. “A cottage industry has arisen in which uninjured plaintiffs lob ADA lawsuits of questionable merit while using the threat of attorney’s fees to extract settlement payments,” Acheson’s lawyers said.
  • Mar 2023
  • Feb 2023
    • CVS and Dalton –– CVS class action claims blind, low-vision customers cannot independently use HealthHub kiosks. CVS Health Corporation failed to make its CVS HealthHub self-service kiosks independently usable for individuals who are blind or visually impaired, a new class action lawsuit alleges.  Dalton vs. CVS Lawsuit Brief — Here are some pictures of Healthhub kiosks which are basically cheap mounted tablets. LINK
    • Biometrics and Maryland — link on Biometric Update – State of Maryland legislators are debating five bills (four cross-filed and one separate) addressing biometric and other private data collected by private organizations as part of doing business. Members of the Computer & Communications Industry Association issued a statement saying any legislation needs to be narrowly written to protect “high-risk practices,” although without spelling out what that means.
    • Employees, Biometrics & Fingerprints — White Castle facing a fine of $17B for violating privacy of employees with fingerprint scanner. On February 17, 2023, the Illinois Supreme Court held that each scan or transmission of a person’s biometric identifiers is a separate violation of Illinois’ Biometric Information Privacy Act (BIPA). In Cothron v. White Castle System, Inc., 2023 IL 128004, the plaintiff was an employee at a White Castle restaurant. She alleged that White Castle, without obtaining the statutorily mandated consent, required her to scan her fingerprint multiple times each day to access company systems. The plaintiff argued that each scan since BIPA’s enactment in 2008 was a separate violation. White Castle argued that if any violation occurred, it was a single violation in 2008, when it first collected her fingerprints without obtaining proper consent. Thereafter, White Castle argued, each new scan was not a new “collection” of her fingerprints. By a 4-3 majority, the court agreed with the plaintiff that each scan was a separate violation. National Law Review, White Castle could face multibillion-dollar judgment in Illinois privacy lawsuit,
    • Related:  Repeated Violations Doctrine
    • Nearly 2,000 lawsuits alleging violations of BIPA have been filed since 2017, yielding a series of massive settlements and judgments. Amazon, Facebook and others.
  • January 2023
    • Voice Recognition — Whole Foods Reaches $300k BIPA Settlement Over Voice Recognition Lawsuit — Whole Foods has reached a $297,000 settlement in a lawsuit filed under Illinois’s Biometric Information Privacy Act (BIPA). The lawsuit alleged that Whole Foods enrolled distribution center workers in a voice recognition system without properly obtaining consent and providing the necessary disclosures as required under BIPA. The settlement, which has received early approval from a state court judge, would see $545 paid out to each of the class action’s 330 workers.
  • December 2022
    • And then there are child labor laws — McDonalds franchisee violates laws and is fined
    • A McDonald’s franchisee that fired an autistic employee who worked at several of the burger chain’s restaurants for 37 years has settled a civil rights suit in New Jersey federal court ($100K via Law360)
    • Opinion on NFB and Walmart (and Dalton) regarding supermarket checkout, perfect equality. Excerpt – The NFB  decision illustrates one way to approach this problem. In NFB the Court decided that because there are no regulations for POS devices other than ATM’s public accommodations are not required to provide accessible POS devices. There is still an obligation to provide the auxiliary aids and services necessary for individuals with a disability to use the devices, but that can include human assistance because human assistance is a specifically recognized type of auxiliary aid and service.(8)  Walmart and NFB ADA Title III and Point of Sale Devices – technology, regulation and changing expectations
  • November 2022
    • Fedex Settles In California – The terms of the preliminary settlement, agreed to in September, include FedEx paying $900,000 in attorneys’ fees and $20,000 to Kouri for a release of his individual claims. Over the course of the next four years, FedEx must also engage with an ADA consultant, train its drop box team in ADA compliance measures, survey each of its roughly 34,000 drop boxes, remove any access barriers and ensure that new drop boxes adhere to 2010 ADA standards.
    • ADA Settlement with Cinemark USA, Inc. Improves Accessibility of Enfield Movie Theaters – requires Cinemark to add ADA-compliant signage at exits and auditoriums, provide an accessible dining surface in the concession area, and acquire more receivers to use with its assistive listening system.  The settlement also requires Cinemark to make numerous changes in the bathrooms, such as moving grab bars, removing a step up at a threshold, and making a bathroom door easier to open.
  • September 2022
  • August 2022
    • Accessible Website California Ruling — The case for this week is Martinez v. Cot’n Wash, a published decision from the Second Appellate District of the Court of Appeals of the State of California. The case involves an Internet only business that got sued by a person with a screen reader for an inaccessible website. Before bringing suit, plaintiff sent a demand letter. Notably, defense responded with their belief that the Internet site complied with the applicable WCAG level AA and asked for clarification from the plaintiff. Plaintiff then sues anyway. The Court of Appeals holds that the gateway principal rules in California and without a gateway the plaintiff has no case.
  • July 2022
    • Telehealth Accessibility Guidelines issued by HHS and Department of Justice
    • DOJ says NPRM on web accessibility will be issued in April 2023 — link
    • ADA Judgement News – Uber Commits to Changes and Pays Millions (actually $1.78)
    • Goren Blog on Airline Passengers Bill of Rights — link
    • DOJ Goes All in on ADA is a Nondelegable Duty — In the Statement of Interest, the DOJ goes all in on the ADA being a nondelegable duty. That the ADA is a nondelegable duty should not surprise readers of this blog because we previously discussed that here, and I return to the concept frequently.
  • May 2022
    • Telemedicine Lawsuits — Howard Industries is being sued by Capsa for patent infringement on its series of telemedicine carts. Seven different patents in play. Howard Industries Patent Suit
    • EV Systems Not Working — Of the 657 open public DCFC CCS EVSEs evaluated in this study, 72.5% were functional at the time of testing while 27.5% were either not functional or the cable was too short to reach the EV inlet. Effective compliance measures are needed for EV charging stations that are part of a court settlement or paid for with public funds.
    • The Justice Department today announced that it has entered into a settlement agreement with the Holiday Inn Express Hotels & Suites in Columbus, Ohio, owned by Badrivishal, LLC, Inc., that will provide access for customers at the hotel with disabilities, including those who use wheelchairs. The agreement requires the hotel to remove barriers to accessibility by making physical modifications so that parking, entrances, public restrooms, the front desk, drinking fountains, and routes within the hotel are accessible. The hotel will also ensure that the rooms, including bathrooms, that are required and advertised as accessible to people who use wheelchairs are accessible. The hotel will also pay $20,000 in damages to the couple harmed by the discrimination.
    • Class Action on Choice Hotels — plaintiff says Choice Hotels does not make its website accessible to the blind, violating the Americans With Disabilities Act.
    • How Will ADA Guidelines Impact Public Electric Vehicle Charging Stations? — The ADA does not currently include specific guidelines for EVCSs, but they will still need to be accessible. Some variation of the ADA standards, such as those for parking, operable parts, and kiosks will likely apply to charging stations.
    • From Hospitality Net related — The ADA does not currently include specific guidelines for EVCSs, but they will still need to be accessible. Some variation of the ADA standards, such as those for parking, operable parts, and kiosks will likely apply to charging stations.
  • April 2022
    • Seven questions to determine lawsuit probability via BIPA (Illinois) — Biometrics – Questions to Ask BIPA FindBiometrics-Identity-School-BIPA-Checklist
  • March 2022
  • February 2022
    • DOJ and WCAG — The Justice Department today announced that it has secured a settlement agreement with Meijer, Inc., that will help people with disabilities get information about COVID-19 vaccinations and book their vaccination appointments online. The agreement, which requires Meijer to conform its COVID-19 vaccine content to the Web Content Accessibility Guidelines Version 2.1, will help ensure that individuals with disabilities who use screen readers and those who have difficulty using a mouse can privately and independently book their potentially life-saving vaccination appointments online. Today’s resolution is the department’s fourth agreement on the critical issue of COVID-19 vaccination website accessibility, following a November 2021 settlement with Rite Aid Corporation; a December 2021 settlement with Hy-Vee, Inc.; and a January 2022 settlement with The Kroger Co.
  • January 2022
    • Dardens and Applebees being sued for patent violation. Involves the use of QR Codes. Dardens Patent Suit 181127626417
    • DOJ — The Justice Department announced that it has secured a settlement agreement with The Kroger Co. to help people with disabilities get information about COVID-19 vaccinations and book their vaccination appointments online. The agreement, which requires Kroger to conform its COVID-19 vaccine content to the Web Content Accessibility Guidelines Version 2.1, will help ensure that individuals with disabilities who use screen readers can privately and independently book their potentially life-saving vaccination appointments online. Today’s resolution is the department’s third agreement on the critical issue of COVID-19 vaccination website accessibility, following a November 2021 announcement of its settlement with Rite Aid Corporation and a December 2021 settlement with Hy-Vee, Inc.
    • Updated Quest diagnostics kiosk ADA suit by American Council for Blind
  • December 2021
    • The Justice Department entered into a settlement agreement with the Champaign-Urbana Mass Transit District (MTD) to resolve an investigation conducted under Title II of the Americans with Disabilities Act (ADA). Under the agreement, the MTD must conform its website – www.mtd.org – and mobile applications to the Web Content Accessibility Guidelines (WCAG), Version 2.1, Level AA. Additionally, the MTD must invest a minimum of $100,000 to improve its services for passengers with disabilities. For more information on the ADA or this settlement agreement, please visit ADA.gov
  • Uber — Justice Department Sues Uber for Overcharging People with Disabilities
    • Big story on Linkedin.
    • Comments: Read the complaint. Interesting that the only two plaintiffs mentioned were people with foldable chairs. There are lots of mobility-impaired people who don’t use chairs that would have trouble with the two minute rule. I wonder if the blind or visually impaired would have trouble as well.
    • Comments: NPR article says as of last week, Uber is waiving the wait fee for anyone certifying, whatever that means, that they have a disability.
  • Law Review: $125M judgment against Walmart in disability discrimination case – Sierra Sun
  • Kaiser Health Organization, EEOC Reach $130K Settlement in Americans With Disabilities Act Case, paywalled — link
  • Decision in favor of Walmart handed down in grocery self-checkout. Doesn’t necessarily mean the end of this litigation. 2021 legal walmart NFB NFB10122021opinion
  • ADA considerations for inquiring about COVID vaccination status while you are interviewing potential new employees — JDsupra – 10/11/2021 — Here is another look at asking applicants — Link
  • Facial recognition litigation — Cedar Lane has now sued over 140 defendants and asserted nearly 50 patents (each received either directly or indirectly from Intellectual Ventures LLC (IV)).
  • Companies win a couple of rounds on web accessibility — Intent to sue versus intent to use
  • Kiosk ADA — Quest Diagnostic Check-In Kiosks Under DOJ Scrutiny — Plaintiffs allege that Defendants require patients to use an electronic, self-service kiosk to check in, input personal information, choose where to wait, and perform other tasks. No staff are allegedly present in the check-in area, so patients with vision impairments must ask strangers for assistance or bring companions.
  • Broadening Right of Blind To Sue — A federal appeals court ruled Tuesday that two blind students have the right to use disparate impact theory — which requires plaintiffs only to show that a policy has a disparate impact on them, not that it was intentional — in a lawsuit against the Los Angeles Community College District. If the ruling is upheld, a lawyer for the National Federation of the Blind, which joined the case, said it would be much easier to win discrimination cases based on disability.
  • Unethical ADA conduct – Uncaptioned videos at gas pumps — Lack of Sincerity
  • Mental health disability – The Justice Department entered into a settlement agreement with Brown University to resolve an investigation conducted under Title III of the Americans with Disabilities Act (ADA).
  • VISA Surcharge Ban lifted in Colorado in July 2021 — In related news from August, Amazon has begun assessing 0.5% surcharge on VISA payments in Singapore and is expected to add other areas.
  • Outdoor EMV Liability Shift Increasing — A CMSPI analysis found that chargebacks have tripled since January 2021. “If you look at January as the baseline month, May is almost triple of what January was in terms of overall chargebacks. There was a pretty substantial increase of about 50 percent in April, and that really ballooned in May,” Pynn said, explaining that chargebacks are often delayed because it takes some time for the consumer to realize the fraud and file a report. “The feedback loop takes some time.”
  • The California attorney general’s office started enforcing the California Consumer Privacy Act (CCPA) on July 1, 2020. Does your app or website collect data?
  • ADA Lawsuits on track for 4000 in 2021. E-Commerce top of the list. Small companies now being sued more often. Widgets/overlays no protection provided.
  • Apparently, we now have a fully functioning DOJ or Department of Justice.  Enforcing laws appears to be coming back into vogue.  We know of many cases the DOJ has “expressed interest”, unlike the former. The prosecution probability index (PPI) has definitely risen in the last 3 months.
  • The big mysteries at this point is how a large number of franchisees ALL violate ADA. We can understand this ones or that ones but 139? And then, given 50 states why would McDonald’s choose to trial biometrics in the one state that has extensive laws surrounding it. Sometimes “bad law” can be created by bringing suit in an unsympathetic district court. Winn-Dixie is prime example of that.
  • One other trend that is noteworthy revolves around videos and specifically audio embedded. This can be actual audio track or it could be a narration. Multiple languages. Media from Amazon, Netflix, Disney come into play. Any description of services with visuals.

July 2021

  • WCAG Web Accessibility – WCAG Web Accessibility Lawsuits (Websites, Mobile, Video) – for full data visit Usablenet.com
  • Samsung #1 in patent litigation (defendant).  4,282.  Seesidebar  image

    Samsung Patent Litigation

    Samsung – Click for full size

June 2021

  • Supreme Court upholds ACA — this impacts all types of healthcare technology — In the decision, the court reversed a lower court ruling finding the individual mandate unconstitutional. However, the court did not get to the key question of whether the individual mandate is severable from the rest of the law. Instead, the court held the plaintiffs do not have standing in the case, or a legal right to bring the suit.
  • Wendys faces ADA class action — from Law360 — A proposed class of consumers with mobility disabilities has slapped the owner-operators of 139 Wendys franchise restaurants with a suit in Wisconsin federal court, claiming they violated the Americans with Disabilities Act by denying disabled customers full and equal access to the eateries.
  • CVS Exposed 1 Billion user data records — 204GB — the data exposed online included customer email addresses, user IDs and customer searches on CVS Pharmacy websites for COVID-19 vaccines and other medications, according to the report.
  • McDonalds Being Sued in Illinois for obtaining and storing biometric data from drive-thru customers.  Voice captured then run thru AI engine.

April 2021

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ADA Kiosk Legal Actions Kiosks
Author: Staff Writer

Craig Keefner -- With over 40 years in the industry and technology, Craig is widely considered to be an expert in the field. Major early career kiosk projects include Verizon Bill Pay kiosk and hundreds of others. Craig helped start kioskmarketplace and formed the KMA. Note the point of view here is not necessarily the stance of the Kiosk Association or kma.global

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