On August 2, 2024, Governor J.B. Pritzker signed SB 2979 into law, amending the Illinois Biometric Information Privacy Act (BIPA, 740 ILCS 14/ et seq.) in two significant ways:
The amendment expressly limits an individual to, at most, one recovery under sections 15(b) and 15(d) where a private entity collects the individual's same biometric information multiple times by the same method or, in the case of 15(d), discloses that information to the same recipient in the same way. In such cases, a private entity that violates section 15(b) or 15(d) will be found to have committed only a single violation. The amendment overturns the Cothron v. White Castle "per-scan" damages holding, which provided that a separate claim accrues under BIPA each time a company collects or discloses an individual's biometric information in violation of sections 15(b) or 15(d).
The amendment expressly provides that an "electronic signature" constitutes a "written release," which is defined 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."
While the amendment provides clarity to private entities on the methods for obtaining consent for the collection and disclosure of biometric information, it most notably reduces the risk of "annihilative liability" that private entities faced after Cothron v. White Castle.
Finally, while it remains an open question, there are strong arguments that the amendment should be applied retroactively to pending litigation. Beyond the underlying legislative intent, Illinois law, which follows the two-step approach established by the U.S. Supreme Court in Landgraf v. USI Film Products, 511 U.S. 244 (1994), should favor a finding that the amendment applies retroactively because the limitation of an aggrieved person "to, at most, one recovery" under sections 15(b) and 15(d) only affects the remedy available to a particular individual.
Newsflash 2024-174
This article is presented for informational purposes only and is not intended to constitute legal advice.