Ropes & Gray data, privacy & cybersecurity associate Matthew Cin spoke with Law360, about Illinois’s recent amendments to its Biometric Information Privacy Act (BIPA). Ever since it was enacted in 2008, BIPA, which can restrict companies from collecting and sharing biometric data without data subjects’ consent, has been a source of privacy-related litigation and
On Friday, August 2, Governor J.B. Pritzker of Illinois signed into law SB2979, an amendment to the state’s landmark biometric privacy law. The amendment offers a welcome step forward to correcting the rapid overexpansion of potential damages associated with violations of the law without curbing any of its privacy protections. The measure amends the state’s Biometric Information Privacy Act (“BIPA”) in two significant ways. First, the law, as amended now expressly includes electronic signatures as a form of “written release.” Second, the amendment limits actions for recovery to a maximum of one violation per plaintiff, rather than one violation per instance of collection or transmission of biometric information. This post examines the amendment and its impacts on businesses collecting biometric information in the state. We also highlight notable biometric privacy developments in Texas.Continue Reading Biometric Privacy Update: Illinois Legislature Balances BIPA, but Don’t Mess with Texas
On 5 March 2024, the UK data protection regulator (ICO) published guidance on biometric recognition (the Guidance), following a consultation with stakeholders in October 2023. The Guidance clarifies the concept and properties of biometric data and provides practical considerations for organisations contemplating or using biometric recognition systems.Continue Reading ICO Publishes Biometric Data Guidance
Employee monitoring isn’t new, but its extent and how it has been conducted has seen significant changes in the last few decades; we have come a long way from the punch cards of the 1900s to the current use of video surveillance, e-comms monitoring and AI, among other monitoring tools.
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While the Illinois Biometric Information Privacy Act (“BIPA”) is “of 2008,” only in the past few years has BIPA litigation exploded at a pace likely to continue. BIPA generally requires companies that collect biometric information or identifiers in Illinois to adhere to certain practices, including providing a public privacy policy; obtaining written consent before collection; abstaining from the sale of, or other profiting from, biometric data; disclosing biometric data only with prior consent; and maintaining security measures to protect biometric data. The growing wave of BIPA litigation has helped clarify certain aspects of the Act while bringing others into question, as amendments may further alter the legal landscape. Continue Reading Illinois’s Biometric Information Privacy Act: A Reflection on 2023
Illinois continues to be a hotbed of privacy litigation, in large part due to Illinois’s landmark Biometric Information Privacy Act (BIPA), which was enacted in 2008. Despite the flood of cases in the wake of Rosenbach v. Six Flags Ent. Corp., 2019 IL 123186, 129 N.E.3d 1197 (Ill. 2019), this is only the first BIPA class action lawsuit to proceed to trial. On October 12, 2022, in Richard Rogers v. BNSF Railway Company (Case No. 19-C-3083, N.D. Ill.), a federal jury in Chicago found in favor of a class of more than 44,000 truck drivers who alleged that BNSF Railway Company (BNSF) violated BIPA by unlawfully scanning employee fingerprints for identity verification purposes without giving notice and obtaining their prior written permission. U.S. District Judge Kennelly entered a judgment against BNSF for $228M in damages. This case highlights many important considerations for organizations deploying biometric technologies in Illinois, including the potential for vicarious liability for a vendor’s actions, and provides valuable insight into how damages in BIPA cases are calculated. This decision from the Illinois court demonstrates that defendants can face significant civil liability in BIPA litigation, and companies using or collecting biometric information should be aware of these risks.Continue Reading First-Ever BIPA Trial – Jury Awards Staggering $228M in Damages
In a unanimous decision issued on February 3, 2022, the Illinois Supreme Court held in McDonald v. Symphony Bronzeville Park that the Illinois State Workers’ Compensation Act (“WCA”) did not bar claims under the Illinois’ Biometric Information Privacy Act (“BIPA”). In doing so, the court eliminated one significant defense commonly raised in such cases, since many BIPA class actions are brought in the context of employment (many of which were stayed pending the decision in McDonald). Critically, though, the decision does not preclude other potential defenses including claims of federal preemption.
BIPA is one of the most actively litigated privacy statutes in the United States. Among other things, it requires that businesses obtain consent prior to collecting biometric information (fingerprints, facial geometry information, iris scans and the like), issue a publicly available data retention policy, and refrain from certain data sales and disclosures. Because BIPA provides for a private right of action along with statutory damages of $1,000 to $5,000 per violation, it has proved fertile ground for the plaintiff’s bar.Continue Reading Illinois Supreme Court Finds Illinois Biometric Information Privacy Act Not Preempted By State Workers’ Compensation Law
As 2021 comes to a close, so does our 12 Days of Data series, but we will see you on the other side in 2022 with more posts on the top privacy and data protection issues. 2021 was an interesting year. While vaccinations spread and some sense of normalcy started to return, new strains of COVID-19 led to additional waves of shutdowns that stalled many of the debates. In 2022, we anticipate that the move toward a new normal will continue, and we will once again start to see traction on some of these data, privacy, and cybersecurity issues. As a preview, here are some of the key areas where we expect to see potential developments in 2022.
Continue Reading Closing out the 12 Days of Data: What to Expect in 2022
If 2021 is any indication, the Federal Trade Commission (FTC) shows no signs of slowing down in its pursuit of enforcement actions to address a wide variety of alleged privacy and cybersecurity issues. Under the leadership of new chair, Lina Khan, the past year has seen the FTC engage is a variety of new and expanding enforcement actions exhibiting an increasing interest in regulating data privacy and security, as well as other consumer protection areas.
While the FTC has become the de facto regulator for entities that are not subject to other sector-specific regulations, the Commission’s assertion of authority over privacy and cybersecurity matters is limited by its statutory powers under section 5 of the FTC Act, which prohibits “unfair or deceptive acts or practices” that injure consumers. The FTC’s expansion of that authority to cover privacy and cybersecurity matters has only grown more aggressive in recent years but has also become the subject of close judicial review. Notably, in 2018, the Eleventh Circuit ruled, in LabMD, Inc. v. FTC, that the FTC did not have unlimited authority to dictate the details of companies’ privacy and cybersecurity protections. Earlier this year, the Supreme Court, in AMG Capital Mgmt., LLC v. FTC, held that Section 13(b) of the FTC Act does not allow the FTC to obtain monetary relief in federal court. The FTC has asked Congress to use its authority to remedy this ability, and claims that this constitutes a loss of its “best and most efficient tool for returning money to consumers who suffered losses as a result of deceptive, unfair, or anticompetitive conduct.”
The FTC has pushed for a more expansive view of its authority for several years, and this has only intensified over the last year. Even before the AMG decision, the FTC had been advocating for Congress to address the gap in Section 13(b), which only explicitly provides for the FTC’s ability to order injunctive relief and is silent on monetary relief. While waiting on Congress to address the issue, we expect for the FTC to continue to bring enforcement actions and order restitution and disgorgement via their Section 19 authority, which provides for these types of relief, but only after a final cease-and-desist order, which can be challenged and is subject to review of appellate courts.Continue Reading FTC Signals Increased Focus on Privacy and Data Misuse
The European Commission (EC) may be set to propose extensive new legislation – potentially later this week – which, among other things, would ban the use of facial recognition technology for surveillance purposes and the use of algorithms that influence human behavior, according to recently leaked draft documents. The proposals would also introduce new rules regarding high-risk artificial intelligence (AI).
Although the use of AI systems is regarded as beneficial in many areas of society, use of AI in some contexts can be controversial. For example, the use of algorithms in the context of employment-related decision-making, allegedly based solely on automated personal data processing, including profiling, has recently been challenged under the GDPR in the Dutch courts, although this decision is likely to be contested.
Continue Reading EU Proposals May Limit the Use of Artificial Intelligence