New Year, Same BIPA

Last Friday saw what has become an all too common sight in Springfield, Illinois—the end of another legislative session without Biometric Information Privacy Act (BIPA) reform. Going into the end of the session, hopes were higher than normal for legislative change due, in large part, to the Illinois Supreme Court’s invitation to the legislature in the Cothron v. White Castle decision to clarify BIPA’s damages provision, which led to greater than normal interest and engagement from key stakeholders within the legislature.

A flurry of last-minute negotiations and proposals kept that hope alive until the closing day of the legislative session, but ultimately the two sides hit an impasse dooming the reform efforts for now. The final, officially proposed language (available here) would have:

• Modified BIPA’s damages provision to allow for recovery of $1,500 (rather than $1,000) per negligent violation, but limited successful plaintiffs to a single recovery for each section of BIPA that was violated, with regards to the individual’s same biometric data—in other words avoiding the per-scan theory of damages that is arguably available following Cothron.
• Included language explicitly allowing consent under BIPA to be obtained through an electronic signature.

A large contingent of stakeholders viewed these changes as being insufficient to truly address concerns of the hundreds of companies that are currently in the middle of BIPA lawsuits, particularly given the potential impact that increasing the per-negligent violation damages to $1,500 could have on the BIPA settlement market. As a counter, that group proposed additional language that would have: (1) made clear that the changes to BIPA’s damages provision applied retroactively to all of the existing BIPA cases; and (2) created an exception from BIPA for biometric data that is collected and used for a security purpose. This counter-proposal did not pick up traction from the other side and was never formally introduced as a proposed amendment before the legislative session closed.

What Now?  

The closing of the regular legislative session likely ends the possibility of legislative BIPA reform in 2023. While it is possible that the legislature chooses to act on BIPA reform when they reconvene for the short “veto session” in several months, as things currently stand there is nothing to suggest that this is likely to happen. Instead, it seems more likely that the legislature has chosen to ignore the Illinois Supreme Court’s invitation to clarify BIPA.

In the meantime, the petition for a rehearing before the Illinois Supreme Court, in the Cothron v. White Castle case, remains pending.