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 Illinois’ political leaders are
pulling out all the stops to lure Amazon’s second North American headquartersto
the Prairie State. Billions in combined state tax credits, local incentives and
infrastructure spending are reportedly on offer. The urgent desire to keep
Illinois in play as a potential home for the online retail giant’s HQ2 has even
made unlikely partners of Gov. Bruce Rauner, Chicago Mayor Rahm Emanuel and Cook
County Board President Toni Preckwinkle.
Yet despite the herculean efforts to entice Amazon to set up shop in the Land of
Lincoln, tech industry and business organizations have raised concerns that many
state politicians and special interest groups are making Illinois inhospitable
to tech firms and businesses in general.
 Steve DelBianco, the president and CEO of e-commerce association NetChoice, in
an Oct. 24 op-ed in The State Journal-Register called out “over-regulations” and
“special interest attorneys” for “placing more hurdles on the path to prosperity
for Illinois’s tech scene.” And Todd Maisch, CEO of the Illinois Chamber of
Commerce, warned “against measures that limit our potential and hurt our overall
business climate” in an article in the Quad City Times.
DelBianco criticized the flurry of class-action litigation under Illinois’
Biometric Information Privacy Act, or BIPA, which he said plaintiffs’ attorneys
are pursuing “to increase their bottom line while harming some of our country’s
leading tech companies.”
The BIPA was enacted in 2008 to safeguard biologically derived, or biometric,
information, such as fingerprints, facial images and iris scans. It is the most
stringent law of any state regarding the consent, notice and disclosure
procedures private entities must follow when collecting, storing or using
people’s biometric information. The BIPA gives private parties the right to sue
for violations of the act and to collect the greater of $1,000 or actual damages
for each violation negligently committed, and the greater of $5,000 or actual
damages for each violation recklessly or intentionally committed. Plaintiffs can
also collect attorneys’ fees and costs under the BIPA.
 Since 2015, Illinois consumers have sued under the BIPA for alleged violations
by companies that use facial-recognition technology, such as Facebook,
Shutterfly, Google, Snapchat, Take-Two Interactive Software, Wow Bao and others,
as well as companies that have used fingerprint scans, such as L.A. Tan.
In 2017, scores of employers have been hit with class-action lawsuits by
Illinois employees for alleged violations of the BIPA, mostly in connection with
the use of fingerprint-operated time-tracking machines. Since July, more than 30
class-action lawsuits against employers have been filed in Illinois under the
BIPA, according to employment lawyers at Baker & Hostetler LLP. Those employers
facing BIPA lawsuits range from Speedway LLC, a gas station and convenience
store chain, to Alliance Ground International LLC, which provides cargo, mail
and ramp handling services to airlines, to Paramount of Oak Park Rehabilitation
& Nursing Center LLC, a nursing home.
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In addition to class-action BIPA lawsuits, which employment lawyers
at Quarles & Brady LLP have warned could be ruinous for employers,
DelBianco noted as anti-business the “pro-lawsuit” bills that have
been pushed in Springfield. These include several internet privacy
bills introduced in the General Assembly during the spring
legislative session. These bills – the Right to Know Act, the
Geolocation Privacy Protection Act and the Microphone-Enabled
Devices Act – would impose consent, notice, disclosure and security
requirements on private entities with regard to the handling of
people’s online information, geolocation information and the
microphones on people’s devices.
Only the geolocation bill passed both chambers of the General
Assembly. Maisch criticized the Geolocation Privacy Protection Act,
as “creat[ing] solutions to problems that don’t exist, then
pass[ing] along the costs to consumers, … benefitting Illinois’
legal community at the expense of everyone else.” Rauner vetoed the
bill in September, explaining it would have contributed “to
Illinois’ existing burden of red tape … [and] hurt Illinois’ growing
reputation as a destination for innovation-based job creation.”
Some have urged an override of the governor’s veto of the
geolocation privacy bill. Among the proponents of an override is the
Digital Privacy Alliance, a digital privacy advocacy group whose
board members include a partner at Edelson PC, the law firm that has
brought several privacy-law class-action lawsuits, including some
under the BIPA. In an op-ed in The State Journal-Register, Jeff
Hamburg, the policy director for the Digital Privacy Alliance, notes
the geolocation bill vetoed by Rauner only allows the attorney
general or a state’s attorney to enforce it and thus does not
encourage “court-clogging litigation.” Yet Hamburg does not mention
that the original version of the bill did indeed allow individuals
to sue and collect the greater of $1,000 or actual damages, along
with attorney’s fees. Nor does Hamburg explain that state’s
attorneys and the attorney general could themselves file geolocation
privacy lawsuits against companies – and hire private attorneys to
conduct them.
While privacy concerns in the internet age are real, the flood of
potentially devastating class-action litigation against Illinois
employers and tech companies should give lawmakers pause. There’s no
doubt Illinoisans need more, not fewer, job opportunities. If the
state is as eager to put out the welcome mat for innovators and job
creators as some of its leaders would suggest, the General Assembly
should think twice before passing a bevy of new digital regulations
that could increase costs and compliance burdens for companies.
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