Illinois Governor Signs BIPA Amendment into Law

On Aug. 2, Illinois Gov. J.B. Pritzker signed Senate Bill 2979, which amends the Illinois Biometric Information Privacy Act, 740 ILCS 14/1 et seq. (BIPA). The bill, which passed both the Illinois House and Senate by an overwhelming majority, confirms that a private entity that more than once collects or discloses the same biometric identifier or biometric information from the same person via the same method of collection in violation of the BIPA has committed a single violation for which an aggrieved person is entitled to, at most, one recovery. SB 2979 adds the following clarifying language to Section 20 of the BIPA, which is the section of the statute that identifies the damages a prevailing party can recover under the BIPA:

“(b) For purposes of subsection (b) of Section 15, a private entity that, in more than one instance, collects, captures, purchases, receives through trade, or otherwise obtains the same biometric identifier or biometric information from the same person using the same method of collection in violation of subsection (b) of Section 15 has committed a single violation of subsection (b) of Section 15 for which the aggrieved person is entitled to, at most, one recovery under this Section.

“(c) For purposes of subsection (d) of Section 15, a private entity that, in more than one instance, discloses, rediscloses, or otherwise disseminates the same biometric identifier or biometric information from the same person to the same recipient using the same method of collection in violation of subsection (d) of Section 15 has committed a single violation of subsection (d) of Section 15 for which the aggrieved person is entitled to, at most, one recovery under this Section regardless of the number of times the private entity disclosed, redisclosed, or otherwise disseminated the same biometric identifier or biometric information of the same person to the same recipient.”

The amendment takes effect immediately.

Background

In Cothron v. White Castle System Inc., 2023 IL 128004, the Illinois Supreme Court held that claims under Sections 15(b) and (d) of the BIPA accrue “with every scan or transmission” of alleged biometric identifiers or biometric information. Yet, the Illinois Supreme Court, in deciding the issue of claim accrual under Sections 15(b) and (d) of the BIPA, acknowledged that there was some ambiguity about how its holding should be construed in connection with Section 20 of the BIPA, which outlines the damages that a prevailing party can recover.

Notably, the Illinois Supreme Court acknowledged, “There is no language in the Act suggesting legislative intent to authorize a damages award that would result in the financial destruction of a business,” which would be the result if the state Legislature intended to award statutory damages on a “per-scan” basis. The court went on to say that “policy-based concerns about potentially excessive damage awards under the Act are best addressed by the legislature” and suggested that the Legislature “review these policy concerns and make clear its intent regarding the assessment of damages under the Act.”

SB 2979 was introduced in the Illinois Senate on Jan. 31, 2024, in response to the invitation from the Illinois Supreme Court and clarifies the General Assembly’s intention regarding the assessment of damages under the BIPA.

Electronic Signatures

In addition, the bill also adds “electronic signature” to the definition of written release, clarifying that an electronic signature constitutes a valid written release under Section 15(b)(3) of the BIPA. An electronic signature is defined in SB 2979 as “an electronic sound, symbol, or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign a record.”

Jody Kahn Mason and Jason Selvey are attorneys with Jackson Lewis in Chicago. Joseph J. Lazzarotti is an attorney with Jackson Lewis in Tampa, Fla. Jason C. Gavejian is an attorney with Jackson Lewis in Berkeley Heights, N.J. © 2024 Jackson Lewis. All rights reserved. Reposted with permission.