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The
controversial Biometric Information Privacy Act, or BIPA, was
enacted by the Illinois General Assembly in 2008. The law states
that any company looking to gather biometric data must first
obtain the written consent of the individual, even if they are
just clocking into work.
At issue is the Illinois Supreme Court’s ruling that a separate
claim accrues each time an individual’s biometric information is
scanned. In making the ruling, the high court acknowledged the
law could be a potential business killer. Even without proof of
actual harm, statutory damages can be $1,000 per violation, or
$5,000 per violation if it is deemed intentional or reckless.
“Right now, 15 BIPA class-actions are getting filed everyday
because it's kind of the wild, wild west and potentially it can
crush these employers or these companies and right now they are
kind of exploiting the system,” said attorney Jerry Maatman,
chair of the Duane Morris Class Action Defense Team.
Despite a call from a coalition of business, health and
education groups to amend BIPA, the Illinois General Assembly
took no action on the law in 2023.
The Illinois Supreme Court recently ruled that health care
workers who use fingerprints to access things like medication
and patient health information are exempt from the law.
Lawsuits have been filed over security cameras as well. DoorDash
and UPS Inc. delivery drivers sued Arlo Technologies in October
over cameras with a person detection feature. Security cameras
powered by artificial intelligence don’t violate BIPA, the
company argued while seeking to dismiss the class action before
a California federal court.
Maatman said in 2024, there are probably going to be a lot of
jury verdicts in BIPA cases that eventually will end up in
appellate courts.
“There is going to be a shifting out of the legal issue of if
BIPA applies and if BIPA was violated, what is the measure of
damages and right now that is all over the place,” Maatman said.
At least 15 states are considering modeling their future
biometric privacy laws from the Illinois statute.
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