In 2008, Illinois passed the Biometric Information Privacy Act, 740 ILCS 14/1 (the Act or BIPA), which requires companies to obtain a person’s consent before collecting that person’s biometric data. Illinois, unlike other states such as Texas, provides a private right of action for individuals whose data was collected without proper notification and consent. Under Section 15 of the Act (Retention; collection; disclosure; destruction), a private entity in possession of biometric identifiers or biometric information must develop a written policy establishing a retention schedule and guidelines for destruction of the data.

In what is being reported as the first settlement under the Illinois statute, on December 1, 2016, an Illinois state court approved a $1.5 million class action settlement between L.A. Tan Enterprises Inc. (L.A. Tan) and a class of its customers. Sekura v. L.A. Tan, Ill. Cir. Ct. 2015-CH-16694. The class plaintiffs alleged that L.A. Tan, which used fingerprint scanning technology rather than a key fob for membership purposes, failed to obtain written consent from its customers to use the data. The complaint also alleged that the company failed to provide information about how it would store the biometric data and the circumstances under which it would destroy the data, i.e., when the customer dropped his or her membership or the franchise closed.

What makes this settlement interesting is the fact that the complaint did not allege that the biometrics data was lost, stolen or sold. Instead, the class plaintiffs alleged that the company did not treat the data as carefully as the law requires. Similar to settlements with the OCR over HIPAA violations, the L.A. Tan settlement also requires the company to take corrective action to ensure compliance with the Illinois statute and to destroy all biometric data it still holds.

The sensitivity of biometric data requires companies that conduct business in Illinois to not only properly collect the data, but also store and dispose of the data as required by law. Failure to do so, could expose those companies to unnecessary liability even if the data is not lost, stolen or misused.

Two federal courts, for example, have denied defense motions to dismiss actions brought under BIPA. See In re Facebook Biometric Information Privacy Litigation, Case No. 15-cv-03747, 2016 WL 259385 (N.D. Ca. 5/5/16)(Social networking website users brought punitive class action against an website operator under BIPA, alleging that the operator unlawfully collected and stored biometric data derived from their faces. The court denied the defense motions to dismiss and for summary judgment finding that the users stated a cause of action under BIPA) and Norberg v. Shutterfly, Inc., 152 F. Supp. 3d 1103 (N.D. Ill. 2015)(Consumers brought action against operator of several photo sharing websites, seeking statutory damages for alleged violations of BIPA. Case dismissed with prejudice on April 15, 2016, pursuant to confidential settlement agreement). More recently, however, another federal court in Illinois granted the defense motion to dismiss a BIPA complaint for lack of jurisdiction under Spokeo. See, McCollough v. Smart Carte, Inc., Case no. 16 C 0377, 2016 WL 4077108 (N.D. Ill. 8/1/16).