In light of the recent uptick in litigation involving the decade-old Illinois Biometric Information Privacy Act (BIPA), the Illinois state legislature is now considering amending the Act to allow for business efficiency and to bring the Act back to what some believe to be its original intent.

Generally speaking, BIPA, enacted in 2008, prohibits an entity from collecting, capturing, purchasing or otherwise obtaining a person’s “biometric identifier” or “biometric information,” unless it satisfies certain notice, consent, and data retention requirements. At the time the Act was passed into law, the thought of an entity utilizing fingerprint or facial recognition for employee identification was typically reserved for high-net-worth entities or those with dire need for added levels of security. Fast-forward to 2018, and the use of fingerprint or facial recognition for employee identification is now common for entities, small or large, across nearly every industry.

Accordingly, in February of this year, a bill was introduced to the Illinois General Assembly (SB3053), focusing on exemptions to BIPA for entities utilizing biometric identification for specific purposes. The proposed exemption language states:

Nothing in this Act shall be deemed to apply to an entity collecting, storing, or transmitting biometric information if: (i) the biometric information is used exclusively for employment, human resources, fraud prevention, security purposes; (ii) the private entity does not sell, lease, trade, or similarly profit from the biometric identifier or biometric information collected; or (iii) the private entity stores, transmits, and protects the biometric identifiers and biometric information in a manner that is the same as or more protective than the manner in which the private entity stores, transmits, and protects other confidential and sensitive information.

The proposed language would clarify that the Illinois state legislature does not intend to punish employers for utilizing biometric information for many of the reasons discussed in prior blog articles, including perhaps, Speedway LLC’s use of a finger-operated clock system. If enacted, the proposed amendment would significantly narrow BIPA’s reach, and would likely reduce the wave of copycat litigation against entities using biometric identification as cost-saving and fraud-reduction measures.

While the exemption would likely receive a warm welcome from businesses and employers, companies will still need to be vigilant in their use of biometric information due to the current global initiatives on, and other laws regulating, data privacy.

As of lately, legislative action on the bill has been silent. In April of this year, amendments to the bill were proposed that would further narrow BIPA’s scope. The bill was then re-referred to Assignments and is still pending before the five-member assignment panel. Seyfarth Shaw will provide updates as developments are made available.