SB 2979 – Illinois Biometric Privacy Act Legislation Passes The Illinois Senate

By Gerald L. Maatman, Jr., Alex W, Karasik, and George J. Schaller

Duane Morris Takeaways: On April 11, 2024, the Illinois Senate passed Senate Bill 2979 (the “Bill”) by vote of 46 to 13. The Bill introduces legislation that would amend the Biometric Information Privacy Act (“BIPA”) to limit claims accrued to one violation of the BIPA in stark contrast to the statute’s current “per-collection basis.” The Bill’s proposed revisions are accessible here and the status of the Bill can be tracked here. For any companies involved in privacy class action litigation, the proposed legislations is exceedingly important.

Background On The BIPA

The BIPA currently provides for “a violation for every scan,” based on the Illinois Supreme Court’s decision in Cothron v. White Castle Sys., 2023 IL 128004 (Feb. 17, 2023).  In Cothron, the Illinois Supreme Court held that “the plain language of §§ 15(b) and 15(d) shows that a claim accrues under the Act with every scan or transmission of biometric identifiers or biometric information without prior informed consent.” Id. at ¶ 45.

The majority of the Illinois Supreme Court opined that any policy-based concerns “about potentially excessive damage awards under the Act are best addressed by the legislature.” Id. at ¶ 43.

On January 31, 2024, Senator Bill Cunningham introduced SB 2979 to the Illinois Senate.

The Proposed Revisions To The BIPA Under SB 2979

The Bill’s proposed revisions articulate two key amendments regarding: (1) the “every scan” violation under §§ 15(b) and 15(d); and (2) an additional definition for “electronic signature” that augments the BIPA’s current “Written release” definition.

For violations under §§ 15(b) and 15(d), the Bill endeavors to limit alleged violations of the BIPA to a “single violation” for these respective sections.

The Bill narrows an aggrieved person’s entitled recovery to “at most, one recovery under this section,” provided that biometric identifier or biometric information was obtained from the same person using the same method of collection.  See SB 2979, 740 ILCS 14/20(b).  Similar single violation language is proposed under sub-section (d) of § 15 on the BIPA’s dissemination provision.  See SB 2979, 740 ILCS 14/20(c).

Also included in the Bill is a new definition for ‘electronic signature’ 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 the record.” See SB 2979, 740 ILCS 14/10.  This definition is then incorporated to the BIPA’s already defined “Written release.”  See id.

As of April 25, 2024, the Bill advanced to Illinois General Assembly’s House of Representatives and is assigned to the Judiciary – Civil Committee.

Implications For Employers

Employers should monitor SB 2979 closely as it progresses through the Illinois House of Representatives.  The unfettered potential damages from BIPA claims may be limited to a single scan if the Bill passes.  This would be a major and much-needed legislative coup for businesses with operations in Illinois who utilize biometric technology.

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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

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