NEWSFLASH! Top Court Treatment of the Biometric Information Privacy Act
Authors: Audrey E. Gamble. Esquire and John W. Campbell, Jr., Esquire
The Biometric Information Privacy Act (“BIPA”) regulates the collection and dissemination of biometric identifiers such as fingerprints, retinas, facial contours or voice imprints. While other states have similar regulatory schemes to safeguard biometric information, Illinois is the only state that permits private individuals to file a lawsuit for violations of BIPA.
BIPA has been at the forefront of Illinois legal interest since the 2019 decision in Rosenbach v. Six Flags Entertainment Corp., where the Supreme Court found that actual harm was not required to recover for BIPA violations. This decision spawned a great deal of litigation and illuminated critical questions regarding the application of BIPA.
Earlier this year, the Illinois Supreme Court’s ruling in West Bend Mutual Insurance Company v. Krishna Schaumburg Tan, Inc., 2021 IL 125978, (May 20, 2021), highlighted the importance of specific policy language in determining whether insurers have a duty to defend insureds against alleged BIPA violations. In West Bend, customers brought a class action against a tanning salon based upon the alleged disclosure of biometric information without consents from customers. The Illinois Supreme Court found that the insurer, West Bend, had a duty to defend the salon because dissemination of the fingerprint scans to a third-party vendor was a “publication” that violated the customer’s right to privacy, and that the “Statutory Violation” exclusion in the policy only applied to laws governing specified methods of communication, and not to BIPA.
Several landmark cases currently pending before the Illinois Supreme Court, Appellate Courts, and the Seventh Circuit will have an even greater impact on the application of BIPA.
Before the Illinois Supreme Court is McDonald v. Symphony Bronzeville Park, LLC, which will address question of whether BIPA claims brought by employees against their employers are preempted by the Illinois Workers’ Compensation Act. Tims v. Black Horse Carriers, Inc., and Marion v. Ring Container Techs., LLC, which are pending before the First and Third Districts, respectively, of the Illinois Appellate Courts, are set to decide whether a one-year, two-year, or five-year statute of limitations applies to BIPA claims. Additionally, the Seventh Circuit’s decision in In Re: White Castle System, Inc., will address whether a private entity violates BIPA only when it first collects or discloses an individual’s biometric data without making the required disclosures, or whether a violation occurs each time the entity collects or discloses the data.
As the landscape of BIPA litigation is still in flux, many BIPA cases are currently stalled until rulings are issued on these cases. In light of the heightened focus on BIPA compliance, employers should revisit their data collection and privacy policies to ensure compliance with the requirements of BIPA
CONTACT:
Audrey E. Gamble, Esquire
agamble@satclaw.com
Mobile: (312) 554-3128
John W. Campbell, Jr., Esquire
jcampbell@satclaw.com
Direct: (312) 554-3126
Websites:
https://satclaw.com/
https://www.satcsolutions.com/
https://www.BridgingChicago.com