Newsflash! BIPA Class-Actions Clear Another Procedural Hurdle After IL Supreme Court Decision

Authors: Joseph M.V. Amari, Esquire

From unlocking your cell phone with your facial features, to logging into your computer with your thumbprint, the use of biometric information has become a staple of modern life. However, the use of personal information also creates new privacy concerns that must be addressed.

In an effort to protect the mass of biometric information being collected, the Illinois legislature passed the Illinois Biometric Information Privacy Act, or “BIPA,” in 2008. This legislation requires private entities to follow strict guidelines when collecting and storing an individual’s biometric information. Under BIPA, any entity that takes an individual’s biometric information must 1) inform the individual in writing that their biometric information is being taken, 2) inform the individual of the reason that it is taking the biometric information and for how long it will retain it, and 3) receive a written release from the individual allowing for the entity to take the biometric information. Entities must also maintain a public biometric information retention schedule. See 740 ILCS 14/15. Illinois is unique in its approach to the protection of biometric information in that, unlike other states, BIPA creates a private cause of action for individuals whose information has been collected and improperly handled. This cause of action has led to several class action lawsuits being filed against private entities alleging violations of individual’s biometric information privacy.

A recent Illinois Supreme Court decision has clarified that lawsuits under BIPA will not be going away any time soon. In Marquita McDonald v. Symphony Bronzeville Park LLC, plaintiff Marquite McDonald sued Symphony Bronzeville alleging that the nursing home operator did not follow the proper protocol when collecting and storing her thumbprint for its employee timekeeping system. Symphony Bronzeville argued that, because McDonald’s alleged injury occurred in her workplace, it was precluded by the Illinois Worker’s Compensation Act (the “IWCA”), and therefore McDonald did not have a basis to sue under BIPA. However, the Illinois Supreme Court held that the IWCA did not bar McDonald from bringing suit against Symphony Bronzeville because her loss of privacy from the improper collection of her biometric information could not be characterized as a workplace injury, and therefore was not compensable under the IWCA. Similarly, the Court held that the Illinois legislature did not intend for the IWCA to preclude BIPA claims.

As the scope and strength of BIPA continues to increase, collectors of biometric information should beware.

CONTACT:

Joseph M.V. Amari, Esquire
jamari@satclaw.com
Direct: (312) 554-3103

Andrew J. Annes, Esquire
aannes@satclaw.com
Direct: (312) 554-3110

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