Your turn: A legal and privacy turning point in Illinois

The executive committee of Samsung’s Board of Directors is likely having a long moment of self-reflection after a recent legal reckoning.

In mid-September, the tech giant was “hoist with its own petard” when the U.S. District Court for the Northern District of Illinois issued an order to compel arbitration as outlined in Samsung’s own terms of service. The company was ordered to pay over $4 million in individual arbitration fees and is now likely reconsidering its business decision to include such provisions in its user agreements.

The guts of the case are simple enough. A class action suit filed by Illinois consumers accused Samsung of collecting biometric data without properly informing them or obtaining their consent, in violation of the Illinois Biometric Information Privacy Act (BIPA). After a failed mediation, the plaintiffs in the case moved to exercise their right to arbitrate as outlined in the impossible-to-read contract of adhesion that every consumer was compelled to indicate assent in order to use the company’s products.

In response to this requirement and the ubiquitous requirements of virtually every other tech giant, the consumers that were party to the case opted for mass arbitration all at once rather than one-at-a-time arbitration lawsuits the Samsung lawyers envisioned when drafting these terms of service. Samsung balked as they would have to pay the individual fees for the arbitrations governed by the American Arbitration Association, which led the plaintiffs to compel arbitration in federal court, bringing us to this most recent ruling.

While this decision was a victory for the consumers in the case and for efforts to rein in privacy violations by big tech, the court did not deliver an outright win to the consumer as it could have. It moderated its ruling to allow the process to work its will and come to a conclusion still unknown. And therein lies the problem.

In short, a suit gave way to arbitration, which has given way to mass arbitration, and now we are winding up back in court only to go back to an arbiter to decide the matter at hand. In a broad sense, this system that the companies created and now are refusing to engage with doesn't appear to be working.

Companies feel that arbitration fees have been weaponized against them and are accused of juicing the refs, while consumers feel they are not getting the justice they deserve or are having it delayed by years due to corporate stall tactics. The fact is, things should not have come to this, and there is a need for a better system to hold companies accountable for practices they themselves put into place.

In the 1800s, the great Chicago merchant Marshall Field once quoted to his staff, “Give the lady what she wants.” Over the years, this was transformed into “the customer is always right.” This policy made the dry goods salesman into the preeminent merchant of his day – the Jeff Bezos of his time if you will. A certain generosity in marketing is always welcome and usually good business.

Could anyone say today that the tech giants make it their business practice to help, cultivate, and serve the consumer? I can’t honestly make that case and do not know who could. Instead, the modern trend appears to be to regard the consumer as the opposition to be controlled, where possible, or at its worst to be tricked into a shell game of accountability.

This is not the cornerstone of American capitalism. This is new, unwelcome, and foreign to both the government and the consumer alike. If companies like Samsung do not change their ways and embrace their customer, laws will likely grow like forests. Elected officials and

judges, who have little or no first-hand experience with capitalism, will likely meddle with the rules of the free market in an attempt to protect the consumers from what will surely be decried as predatory practices.

This court decision is an opportunity for Samsung – and for industry and the legal system more broadly to change course. I hope that they can see the wisdom in this.

Will the parties come together to embrace a change that is needed and ultimately pave the way to embrace opportunities that will enrich it and improve their customers’ lives, or will we delve deeper into the game of accountability chicken that has consumers and companies alike talking past each other and deploying stalling tactics? Only time will tell, but I for one, hope it will be the former.

Congressman Mike Flanagan represented the 5th District of Illinois in the historic 104th Congress and served on the Committee on the Judiciary. A practicing attorney, he is also a member of the Illinois State Bar.

This article originally appeared on Rockford Register Star: Your turn: A legal and privacy turning point in Illinois