Illinois Biometric Information Privacy Act (BIPA)

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

On February 17, 2023, the exposure risk of a company found to be violating Illinois’ Biometric Information Privacy Act (BIPA) increased to a potentially crippling amount. What was previously commonly understood to entail a maximum of $1,000 per negligent (or $5,000 for reckless) violation per plaintiff now authorizes a $5,000 fine per instance of collection, turning—for example—the nonconsensual use of an employee’s fingerprint for clocking in and out of work multiple times per day to 1,040 violations of BIPA per year if a full-time employee clocks in and/or out just four times each day, potentially resulting in estimated damages of $1,040,000 for negligent violations or $5,200,000 for reckless violationsContinue Reading BIPA Ahead: A New Ruling Introduces a Staggering Depth Beneath the Tip of the BIPA Iceberg

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