Biometric Privacy: Illinois Supreme Court Decision Allows Claims to Proceed Without Showing of Actual Harm

On January 25, 2019, the Illinois Supreme Court handed down a key ruling that will make it significantly easier for consumers and workers to sue and recover damages for mere non-compliance with the requirements of the state’s Biometric Information Privacy Act, 740 ILCS 14/1 et seq. (BIPA or Act). In its highly anticipated decision in Rosenbach v. Six Flags Entertainment Corp., the state’s high court unanimously held that actual harm is not required to bring an actionable claim under BIPA, and that a violation of BIPA’s technical requirements alone can support a cause of action under the Act. Thus, an individual who merely alleges a technical violation of BIPA is sufficiently “aggrieved” under the Act—with statutory standing to sue for significant statutory damages and injunctive relief—even if that person suffered no actual injury or harm as a result of the violation.

The Illinois Supreme Court’s ruling comes as welcome news to plaintiffs’ attorneys, who will now have fewer impediments to pursue no-injury class action lawsuits under BIPA, which allows for recovery of statutory damages of up to $5,000 for each violation, and attorneys’ fees and costs.

What is BIPA?

When BIPA took effect in 2008, Illinois became the first state to enact a biometric privacy law regulating the collection, use, and storage of “biometric identifiers,”[1] such as fingerprints, voiceprints, iris or retina scans and scans of hand or face geometry, as well as other “biometric information” based on those identifiers to the extent used to identify an individual (collectively, “biometric data”). Although three other states have since passed similar laws, BIPA remains the only one that grants individuals a private right of action—the right to sue and seek damages or injunctive relief for statutory violations.

BIPA does not prohibit the collection or purchase of biometric data. Instead, BIPA provides standards of conduct for private entities (including employers) collecting and maintaining such data, and also places several restrictions and affirmative obligations, including the following:

1. Notice and Consent. BIPA prohibits any company from collecting biometric data until it:
   1. informs the person (or their legally authorized representative) in writing if their biometric data is being collected or stored, and the specific purpose and length of time for which that data is being collected, stored, and used; and also
   2. obtains a written release executed by the person or representative permitting them to do so.
2. Written Policy. Entities must develop and adhere to a written policy, made available to the public, establishing a retention schedule and guidelines for permanently destroying the biometric data when the initial purpose for collecting them has been satisfied or within three years of the individual’s interaction with the entity, whichever occurs first.
3. Standard of Care. Companies should use a “reasonable standard of care” within their industry, and in a manner that is the same as or more protective than the manner in which the business stores, transmits and protects other confidential and sensitive information.
4. Disclosures to Third Parties. BIPA forbids the sale, lease, or profit from the biometric data and prohibits its disclosure except in narrow circumstances (such as with the person’s consent).

Unlike the two other states that have enacted biometric privacy laws, BIPA is the only one that creates a private right of action for any person “aggrieved” by a violation of the Act – meaning that individuals have the right to personally sue and seek statutory remedies based on an entity’s infringement of BIPA’s requirements. As noted above, non-compliance results in steep damages, including the greater of actual damages or liquidated damages of $1,000 for each negligent violation, and $5,000 for each intentional or reckless violation.

Due to the increasingly popular use of biometric data and the potentially significant liquidated  damages offered by the statute, the number of BIPA class action claims filed against companies for their allegedly improper collection of biometric data has ballooned in recent years. Plaintiffs in these cases have generally fallen into two categories: (1) employees of companies that allegedly utilize biometric data, such as fingerprints, for time keeping or physical security purposes; and (2) customers of companies that use biometric data to enhance the consumer experience.

Facts of the Case

The Rosenbach plaintiff fell into this second group. The plaintiff—on behalf of her minor son, a customer of Six Flags—sued Six Flags after her son registered for a season pass at the amusement park. Six Flags allegedly captured the thumbprints of season pass holders to facilitate entry into the park and limit loss from the unauthorized use of passes by non-pass-holders. In her suit against Six Flags, the plaintiff alleged that Six Flags violated BIPA by capturing her son’s thumbprint without first providing written notice, obtaining written consent, and publishing a policy explaining how her son’s thumbprint would be used, retained, and destroyed. She alleged no actual harm beyond the violation of BIPA’s requirements.

Procedural History

Following a motion to dismiss by Six Flags, two questions were certified for interlocutory appeal to the Second District Appellate Court. Both turned on whether an individual is “aggrieved” under BIPA, and thus potentially eligible for statutory remedies, when the only injury alleged is that the defendant collected the plaintiff’s biometric data without providing the required disclosures and obtaining the plaintiff’s written consent as required by the Act.

The Second District Appellate Court answered this question in the negative, holding that a claim is not sufficient if the defendant merely violated a technical requirement of the Act, and that a plaintiff must allege actual harm in order be deemed “aggrieved by a violation” of BIPA.

The Illinois Supreme Court’s Decision

Upon further appeal, the Illinois Supreme Court reversed. Although the plaintiff was not able to prove that her son’s biometric data was stolen or misused, a unanimous court ruled that the plaintiff is “aggrieved” under BIPA even in the absence of an allegation of actual injury caused by the statutory violation.

In reaching its decision, the court first looked to the legislative intent, explaining that the Act vests in individuals and customers the right to control their biometric data by requiring notice before collection and giving them the power to say no by withholding consent. The court viewed these procedural protections as particularly critical in our digital world because technology permits the wholesale collection and storage of an individual’s unique biometric identifiers—identifiers that cannot be changed if compromised. To this point, the court stated that “[w]hen a private entity fails to adhere to the statutory procedures…the right of the individual to maintain [his or] her biometric privacy vanishes into thin air. The precise harm the Illinois legislature sought to prevent is then realized. This is no mere ‘technicality.’ The injury is real and significant.”

The court also showed little patience for employers and businesses that misuse biometric data. According to the chief justice of the court: “[c]ompliance should not be difficult; whatever expenses a business might incur to meet the law’s requirements are likely to be insignificant compared to the substantial and irreversible harm that could result if biometric identifiers and information are not properly safeguarded.”

Looking Ahead

For the past decade, BIPA has become a heavily litigated piece of legislation that has involved class action lawsuits for high-profile companies. BIPA impacts a variety of entities (inclusive of, but not limited to, hospitals, providers, and pharmaceutical and device companies, as well as employers that utilize biometric time clocks to record employees working hours or use biometrics for security or identity verification) and many continue to seek guidance on the interpretation of BIPA and how to effectively comply with it. Questions remain as to the applicability of BIPA in many fields, and how entities may operate so as to ensure compliance with same in such instances of uncertainty.

To avoid exposure to lawsuits under BIPA, any entity with Illinois employees or that operates in Illinois and collects, stores or uses biometric identifiers or information, whether that of its employees or its customers, guests, visitors, they must ensure that they adopt and implement written policies and procedures regarding their collection, retention, disclosure and destruction of this data to ensure that they are sufficient to comply with the strict standards and requirements of BIPA. Having these policies by themselves, however, is not enough. It is critical that entities, especially in an employer/employee context, provide notice to individuals that their biometric information is being collected, stored, and/or used. For employers, this can be part of the onboarding process, where a signed affirmation of receipt of the notice can be made a condition of employment. Doing so will help secure a strong defense to any claim that an employee lacked adequate BIPA notice. Developing policies and procedures that place individuals on notice of an entity’s collection/storage and use of biometric information is especially critical in light of the new precedent set by the Illinois Supreme Court which opens the doors for more than 200 pending similar cases filed under the statute that accuse other businesses, including hotels and research entities, of violating BIPA for collecting biometric data without the accompanying disclosures or written consent. In addition, entities that do, or will have a need to, possess biometric data should immediately take steps to evaluate their need for collecting such information, and assess whether there is an alternative way to accomplish business objectives without possessing this data. If it is determined that biometric identifiers must be used, entities should have a clear understanding of how their biometric software works. Organizations should consider agreements with third-party vendors outlining the vendor’s responsibilities that at least certifies the vendor will comply with all applicable laws, and that the vendor will not disclose the information to third parties without written consent.

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[1] This term does not include signatures, photographs, physical descriptions or biological materials used for medical or scientific purposes.