A proposal to reform the state's Biometric Privacy Act (BIPA) was passed in the House Judiciary-Civil Committee Tuesday afternoon in a bi-partisan vote of 10-5-1.
Business groups, including the state Chamber of Commerce, Illinois Manufacturers Association, Illinois Retail Merchants Association and the Illinois Civil Justice League (ICJL) are supporting two proposals that would overhaul the state's biometric privacy law that has spawned tremendous growth in litigation in Illinois against big and small businesses.
The proposal that passed following a virtual hearing, House Bill 559, would allow for a 30-day time period to correct alleged violations of the Act, as well as actual damages (rather than liquidated damages) for the negligent (currently $1,000 per violation) and willful (currently $5,000 per violation) offending entity. The measure also would exclude employees of private entities from bringing legal action if a collective bargaining agreement that addresses biometric information is in place.
"We are pleased that House Bill 559 received bi-partisan support," said John Pastuovic, ICJL president. "It is a first step to turn over some legislation that is extremely damaging to businesses in Illinois."
State Rep. Jay Hoffman (D-Belleville) was among Democrats who voted for the bill, which is sponsored by Rep. Jim Durkin (R-Burr Ridge), the House Minority Leader.
Opponents of the measure include labor organizations, ACLU Illinois and Illinois Public Interest Research Group. The list of opponents does not include the Illinois Trial Lawyers Association, whose members would be among those in the legal profession who file suit.
In recent years, thousands of lawsuits have been filed in courts across the state, though mainly in Madison, St. Clair and Cook counties. The vast majority of them have targeted employers directly for alleged BIPA violations related to their use of technology requiring workers to scan a biometric identifier, such as fingerprints, hand print, or facial geometry, when punching the clock or accessing secure facilities, such as retail cash drawer rooms or medical drug closets. There are also many lawsuits filed against HR tech and timeclock vendors.
Big Tech has suffered under the state's BIPA law. For example, last month a federal judge approved a $650 million class action settlement in litigation that accused Facebook of failing to secure consent before using biometrics to scan photos uploaded by users and store them digitally.
The Illinois case against Facebook, later removed to federal court in California where the company is headquartered, was pursued by Chicago attorney Jay Edelson.
“Facial recognition and collecting biometrics is the new frontier for a lot of companies and the idea is that if tech companies can tell who you are, then they can track everything you do and that was our big concern with the lawsuit,” Edelson told the Southern California Record. “Storing faces digitally is a number of years away from where companies can do that but we were concerned that that was Facebook’s ultimate business plan.”
As a result of the litigation, Facebook is required to secure clear consent from its users.
“People know that they're actually collecting what we believe are biometric information that Facebook users have to make an informed decision about whether they want Facebook to have that information or not,” Edelson said.
He said that it is one the largest settlements ever for a privacy violation, "and it will put at least $345 into the hands of every class member interested in being compensated."
House Bill 559 now moves to the floor of the Illinois House, which has an April 23 third reading deadline for passage to the Illinois Senate.
The other reform proposal sponsored by Durkin, House Bill 560, "goes one step further," according to the ICJL. It would eliminate "the private right of action in the BIPA law, instead placing enforcement under the Illinois Department of Labor or – if not involving an employer – under enforcement by the Attorney General under the Consumer Fraud Act."