Chicago, Ill. (March 26, 2021) - Illinois lawmakers have advanced a bill that would materially amend the state's Biometric Information Privacy Act (BIPA) and provide significant relief to Illinois employers, who have faced a wave of BIPA class action lawsuits in the last three years. Over 850 BIPA class actions have been filed in Illinois. House Bill 559 (H.B. 559 or the Bill) advanced out of the Judiciary Civil Committee with a bipartisan 10-5 vote, and will soon be read on the floor of the House for debate and amendment of the bill in its current form.
H.B. 559 aims to curb the mass of class actions filed under BIPA in the last several years by allowing Illinois companies a 30-day cure period to remedy any perceived violation of BIPA. An aggrieved person would be required to provide written notice to a company of the alleged violations prior to filing suit. H.B. 559 would also limit an aggrieved individual's recovery to actual damages plus attorneys' fees. Liquidated damages would be available for individuals who prove that an entity willfully violated BIPA – although the Bill would cap liquidated damages at the amount of actual damages. BIPA currently provides for statutory violations of $1,000 for each negligent violation and $5,000 for each reckless or intentional violation, with no proof of actual harm required.
H.B. 559 also seeks to narrow the scope of the definition of "biometric information" to exclude that which cannot be used to recreate the original biometric identifier, for example a template of numbers that cannot be reversed engineered to then identify an individual. The Bill also includes a one-year statute of limitations to bring claims under BIPA, as opposed to the current five-year statute of limitations that has been imposed by many courts, and which is currently on appeal.
Additionally, the Bill exempts from BIPA's purview any private entity with employees covered by a collective bargaining agreement "that provides for different policies regarding the retention, collection, disclosure, and destruction of biometric information." Finally, the Bill would remove the requirement that a BIPA policy be available to the public, clarify currently ambiguous language that "written release" means "written consent" and add language making clear that electronically obtained informed written consent satisfies BIPA's consent requirement.
This is not the first attempt to revise BIPA, and H.B. 559 is likely to face stiff opposition from consumer and employee advocates as it proceeds through the legislative process. Indeed, the American Civil Liberties Union (ACLU) of Illinois has already come out in opposition to the Bill. It is, however, the first bill intended to amend BIPA that has advanced out of committee. While it is unlikely that H.B. 559 will pass in its current form, the advancement to the House floor is a promising sign that lawmakers may take another look at BIPA.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
