United States: Private Rights Of Action Under Illinois Biometric Privacy Statute Sharply Limited

On December 21, 2017, a three-judge panel of the Second District Appellate Court of Illinois significantly narrowed the ability of plaintiffs to bring a private right of action under Illinois' Biometric Information Privacy Act ("BIPA" or "Act"). BIPA provides for a private right of action and liquidated damages of $1,000 per violation (or $5,000 for intentional or reckless violations) to persons "aggrieved by a violation" of its restrictions on the collection, use and sharing of certain biometric data, and class actions under the statute have recently proliferated. Answering questions certified by the trial court below, the intermediate appellate court in Rosenbach v. Six Flags & Great America, 2017 IL App (2d) 170317, held that BIPA requires plaintiffs to "allege some actual harm" instead of merely showing that defendants failed to comply with the statutory requirements.


BIPA regulates how certain private entities handle customers' biometric information, which the Act defines as identifying information based on "a retina or iris scan, fingerprint, voiceprint, or scan of hand or face geometry." The Act prohibits certain use of biometric information, and it requires those who possess biometric information to adopt certain retention and destruction policies. It also mandates that any entity that collects biometric information must supply written notices to the subject about the collection of the information and the purpose for doing so. BIPA provides for a private right of action and liquidated damages of $1,000 per violation (or $5,000 for intentional or reckless violations) to persons "aggrieved by a violation" of these requirements.

BIPA has given rise to an outbreak of high-stakes lawsuits over the last few years. Facebook continues to defend a putative class action suit in a California federal court for using facial recognition software on photos that users upload to the site. Last November, United Airlines and McDonalds were both served Illinois court class-action complaints under the Act, in which employees claim that the fingerprint-based timekeeping and employee-tracking systems collect their biometric data without adhering to BIPA's notice and consent requirements. These and other pending cases pose significant potential liability to the defendants.

BIPA class action defendants have seen mixed results when seeking dismissal of the suits they face. Of particular importance, federal district courts have reached conflicting conclusions as to whether a plaintiff must plead and prove actual adverse consequences from the alleged statutory violation in order to pursue his or her claims.

Rosenbach v. Six Flags

The Six Flags decision provides important guidance on whether actual injury is required by BIPA by limiting the class of persons "aggrieved by a violation" to those who suffer "actual harm or adverse consequences," rather than "a mere technical violation of the statute." When the plaintiff's son purchased a Six Flags season pass, the park allegedly collected his fingerprints for security purposes without obtaining consent or providing the required disclosures.

The court looked to plain meaning and case law from other jurisdictions to determine whether actual injury is required to qualify as an "aggrieved" person under the statute. The court first drew from dictionary definitions to find that a plaintiff must generally show "an actual injury, adverse effect, or harm" in addition to an infringement of legal rights to be "aggrieved" by a statutory violation. Additionally, the opinion said, if the legislature had intended to provide a cause of action for every violation of the statute, it could have said so explicitly instead of qualifying the persons eligible to sue with the word "aggrieved." The court then considered, among other things, federal district court opinions from the Northern District of Illinois and the Southern District of New York that found allegations of mere technical violations of BIPA's notice and consent requirements insufficient to meet the standard of "aggrieved party." The court concluded that a remedy under the Act was not available without an actual injury or adverse effect beyond a technical violation. It qualified this holding, however, by noting that "the adverse injury or adverse effect need not be pecuniary."


Six Flags supplies a powerful tool for defendants to obtain dismissal of BIPA claims. Companies may often have arguments that their mere collection or other handling of biometric data caused no injury to plaintiff at all, requiring dismissal. Further, the ruling will likely make it harder for plaintiffs to obtain class certification under BIPA.

Though this decision solidifies a reading of the Act that favors defendants, there are still important limitations. First, as noted above, the court explicitly qualified its holding by stating that the injury or adverse effect "need not be pecuniary." Additionally, while federal courts will likely give significant weight to this intermediate appellate court's interpretation of BIPA, the Illinois Supreme Court has not yet spoken on the matter.

Actions under BIPA and similar statutes continue to threaten companies with especially significant liability given their potential to implicate large classes of plaintiffs. Internet of Things devices, for example, increasingly use biometric identifiers such as fingerprints, facial scans, or voice data to identify users or provide other services. Given the proliferation of such devices, even minor transgressions of BIPA can amount to numerous alleged violations. At $1,000 to $5,000 per claim in liquidated damages, the risk to companies remains substantial.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions