Flawed Illinois law protecting biometric data leads to frivolous lawsuits against businesses

Illinois’ Biometric Information Privacy Act has been weaponized in recent years to target businesses for frivolous lawsuits, contrary to claims made in a recent Sun-Times editorial. It is time for reform.

BIPA litigation impacts businesses of all sizes, not just large tech companies, including small to mid-sized manufacturers, non-profits, nursing homes and assisted living facilities. In 2019, the Illinois Supreme Court held that a person can seek liquidated damages, even if a person has suffered no actual harm. The result has been an avalanche of lawsuits filed against businesses for minor technical infractions of the law. A vast majority of the cases since the 2019 ruling relate to compliance of strict requirements around notice of collection to employees. Despite what opponents say, it is already illegal to sell or profit from the collection of biometric data.

From 2008 to 2019, there were 173 class action lawsuits filed. Since then, approximately 900 class action lawsuits have been filed. The result, in many cases, are sky-high legal penalties. For example, companies that use biometric data such as fingerprints for timekeeping are being cited for not adequately informing employees the company is collecting information. Therefore, each time an employee clocks in and out is a violation and subject to either $1,000 or $5,000 in damages, depending on certain factors. Multiply these costs per violations per day per employee and you’ll understand how the legal costs to a business, many of which operate on razor-thin margins, can be devastating.

This is one of the many reasons state lawmakers are currently considering a bill, introduced by House Minority Leader Jim Durkin, that would allow businesses to cure unintended violations of the law without being burdened with exorbitant legal penalties. This is not a get-out-of-jail-free card. It is common-sense reform for businesses to rectify mistakes, without removing privacy protections for Illinois residents and workers.

Since passing in 2008, no updates have been made to the law, even as technology continues to evolve and lawsuits pile on. Action is needed now to protect small and mid-sized businesses, especially as many try to recover from the worst public health crisis in generations, as well as the resulting economic crisis.

Jack Lavin
President & CEO
Chicagoland Chamber of Commerce