New Limits for Illinois Biometrics Privacy Law

Illinois has enacted a new law putting some limits on the state’s strict biometrics privacy law.

On Aug. 2, Illinois Gov. J.B. Pritzker signed SB2979, a bill that amends certain provisions of the Illinois Biometric Information Privacy Act.

The changes allow electronic signatures to be used for the “written release” in the biometrics law. (BIPA originally took effect in 2008, before electronic signatures became common.)

More importantly, the amendment to the biometrics law says a private entity that collects or discloses a person's biometric information from the same person in violation of the law more than once has committed a single violation.

This essentially overturns the Illinois Supreme Court’s ruling in Cothron v. White Castle System, Inc. that an individual can recover penalties for each separate biometric scan.

The Illinois Biometric Law and Trucking

Biometric information is used to detect driver fatigue via in-cab cameras, to provide security locks on devices, to better manage a workforce, and other purposes. The use of these biometric scans is now commonplace across the transportation industry, according to the transportation attorneys at Scopelitis, Garvin, Light, Hanson & Feary, as they explained in a 2022 HDT interview.

That interview followed a court decision in a class action lawsuit against Maverick Transportation and Lytx, which claimed the Drivecam dashcam illegally collected facial geometry data, saying it was non-consensual data collection violating BIPA.

Later that year, more than 44,000 truck drivers were awarded $228 million in damages after a Chicago federal jury ruled that BNSF Railway unlawfully scanned drivers’ fingerprints without proper permission while they were picking up and dropping off loads at rail yards.

HDT explored that ruling in an episode of HDT Talks Trucking:

Biometrics Amendment Effective Immediately

With the governor’s signature, SB2979 went into effect immediately on Friday. The bill was passed by the state legislature in May.

“Not only did we preserve the protections in BIPA, we made sure to clarify damages so businesses in our states are not crushed by penalties for violation,” said State Sen. Bill Cunningham, sponsor of the bill, a Democrat who represents portions of Chicago.

The National Law Review notes, “This amendment follows previous failed attempts at similar reforms to stem the fold of BIPA class action litigation that has plagued companies that have enacted fingerprint time cards or other biometric fraud and security measures without strictly complying with BIPA.”

Other states have BIPA-like biometrics laws, including a recently enacted law in Colorado, but only Illinois’ law have a “privacy right of action” allowing lawsuits to be filed. Other states’ laws may only be enforced by the states.

“SB2979 does not indicate whether the Illinois legislature intended for its amendments to apply to claims arising prior to the bill’s effective date,” said the transportation attorneys at Scopelitis, Garvin, Light, Hanson & Feary in an email alert. “As a result, that question remains to be answered by the courts.”