In 2008 the Illinois Biometric Information Privacy Act (“BIPA”) was signed into law. It was designed to address the growing use of biometric identification technology, such as retina scans, fingerprint identification and facial recognition technology.

Notably, the BIPA does not prohibit the collection or use of biometric data but it does govern the collection and storage of biometric identifiers and information. In the last two years, the plaintiff’s class action bar has discovered the statute and its statutory penalties. As a result employers and other private entities have increasingly been subject to lawsuits alleging BIPA violations. The threat of a lawsuit can be avoided by implementing and adhering to a compliant Biometric Information Policy.

Background

BIPA defines “biometric identifiers,” as a retina/iris scan; fingerprints; voiceprints; and the scan of hand or face geometry. Biometric information relates to any information based on an individual’s biometric identifier, regardless of how that information is captured, stored, or shared. Recent advances in fraud detection and prevention technology such as fingerprint timeclocks and secure building access necessitated by federal regulations adopted to combat terrorism threats have placed employers with operations in Illinois at risk. This risk can be avoided by adopting a Biometric Identification Policy that meets the requirements of the Illinois statute.

The cost of non compliance is substantial. BIPA creates a private right of action for statutory violations related to the collection, retention, storage, and use of biometric identifiers and information. In the case of negligent violations, private entities are liable for $1,000 per violation in liquidated damages or the amount of actual damages, whichever is greater. For intentional or reckless violations, liquidated damages are increased to $5,000 per violation or actual damages. Private entities are also liable for reasonable attorneys’ fees, costs, experts’ fee, and injunctive relief in addition to liquidated damages.

Recent Cases

A number of corporations, including internet and video game companies, food product manufacturers, gas stations, and restaurant chains, have been sued in the past few months. Since July 2017, there have been more than twenty-five cases filed in the state and federal courts in Illinois. In addition to the growing popularity of BIPA lawsuits with the plaintiffs’ class action bar, the scope of liability is expanding. In some cases, BIPA liability has moved beyond the employer-employee relationship. For example, Restaurant Chain Wow Bao faces liability for using facial scans to verify customer orders at self-service kiosks. Furthermore, courts have interpreted BIPA broadly, finding defendants must face trial even when the biometric identifiers at issue are not listed in the statute. Recently, Shutterfly’s motion to dismiss a lawsuit was denied on this very issue. The plaintiff alleged BIPA violations based on the use of facial-recognition software on photographs, even the photographs were not listed in BIPA’s definition of biometric identifiers.

As of now, it is not clear if private entities will face liability for mere statutory violation or if plaintiffs will need to show actual injury. A district court judge in the Norther District of Illinois ruled that a showing of actual injury was not necessary for a corporate defendant to be held liable. On the other hand, the Second Circuit Court of Appeals will oddly enough hear the same issue regarding damages under Illinois law later this month. In that case, a New York federal judge dismissed a lawsuit concluding that BIPA statutory violations alone were an insufficient injury to have standing.

As BIPA cases are become more numerous and broad—and are being brought outside Illinois—it is important that all private entities follow the steps outlined in the BIPA to protect themselves from litigation.

What does this mean for employers?

Many employers have begun using timekeeping systems that use biometric identifiers, especially fingerprints, in lieu of timecards or ID badges. Corporations in the service industry are also increasingly using customer’s biometric identifiers, such as face scans, to conduct transactions. As such, employers and other private entities must be vigilant in ensuring full compliance with BIPA’s requirements to minimize legal liability.

Compliance Steps

Under Illinois law, private entities may collect, store, or use biometric identifiers and information from individuals but they must first do the following:

  • Develop a written policy that is made available to the employees or the public. This policy must include a retention guideline and guidelines for permanently destroying unneeded BIPA protected data. Under BIPA, a private entity must destroy biometric identifiers and information once the purpose for which they were collected has been fulfilled or within 3 years of the individual’s “last interaction” with the employer or entity;
  • Provide written notice to all affected individuals that biometric identifiers or information is being collected and stored as well as the specific purpose and time period during which the identifiers or information will be collected, stored and used;
  • Obtain written consent or a release, including a signature from all employees or customers whose biometric identifiers or information will be collected, stored, and used.

After collecting this biometric information, employers or other collectors must also:

  • Adopt procedural safeguards to prevent the disclosure, sale, lease, trade of or profit from biometric identifiers and information;
  • Use the industry’s reasonable standard of care when storing or transmitting this information;
  • Protect the biometric identifier or information in at least the same manner as other confidential and sensitive information, including genetic testing information, driver’s license numbers, or social security numbers; and
  • Ensure biometric identifiers and information are indeed destroyed per the written policy.

Finally, it is important that employers and other private entities take note of potential liability in other jurisdictions. A few state already has similar provisions on the books. For example, Texas passed the Capture or Use Biometric Identifier Act in 2009, Washington recently passed a law in 2017 that governs the enrollment, disclosure, and retention of biometric identifiers, and Colorado regulates the disposal of this information by including biometric data in the definition of personal information. The state legislatures in Alaska, Connecticut, Montana, and New Hampshire are considering enacting laws similar to BIPA. As the regulation of biometric becomes widespread, private entities should adopt a compliant policy now to avoid or minimize liability.