Published: October 2021
The Illinois Biometric Information Privacy Act, in effect since 2008, is the first comprehensive biometric privacy statute in the United States. Over the past few years, BIPA litigation has significantly increased, revealed several enforcement challenges and given rise to numerous legislative initiatives.
In 2021, 11 BIPA-related bills were introduced in the 102nd Illinois General Assembly. At the moment, all of the bills were referred to assignments and were not heard by the 2021 deadline. However, these initiatives may be reintroduced in 2022 and considered during the next legislative session. In this regard, it seems helpful to track all these legislative initiatives and compare their key provisions.
As for the content of these introduced bills, nine of the bills aim to introduce several amendments to BIPA, such as expressly identifying the statute of limitations, eliminating or, at least, limiting recovery of damages, carving out some exemptions (e.g., processing biometric data for security purposes, keeping a record of an employee's work hours, etc.). Some bills abolish the private right of action and/or replace it with government enforcement procedures (i.e., enforcement by the Illinois attorney general and state attorney's offices or the Illinois Department of Labor). Additionally, two bills propose to repeal BIPA in its entirety.
Back in 2008, BIPA introduced various requirements on handling Illinois residents' biometric information (e.g., refraining from profiting from the processing of biometric information, obtaining written consent for collecting and storing biometric information, and developing a written policy, etc.). BIPA does not expressly identify its territorial scope and may significantly affect all entities processing biometric information of Illinois residents. The pivotal component of BIPA is the private right of action that allows an aggrieved person to sue for liquidated damages in the amount of (i) $1,000 for each negligent violation, (ii) $5,000 for each intentional or reckless violation.
In practice, among the most controversial issues are BIPA's broad scope and vague definitions, lack of an express limitations period as well as cure period, and unlimited possibilities of recovery of damages. For instance, recent BIPA-related cases (see, e.g., Tims v. Black Horse Carriers, Inc., 2021 IL App (1st) 200563) reveal a heated debate on whether a one-year or five-year statute of limitations period applies to BIPA claims.
In this regard, most current BIPA bills address these practical challenges. For convenience, we have summarized key provisions of these bills in the form of a table. The table also includes the bill number, link to the text, short description, the list of key sponsors, and each bill's legislative history. Additional information on dates and legislative process in Illinois is included in the "Notes" section at the top of the table.
We will continue to monitor any further developments and update this tracker as there is new activity. If there are additional BIPA-related bills we should be following, please email us at firstname.lastname@example.org.