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Goldberg Kohn litigator David E. Morrison is quoted in "BIPA Reform Becomes Law, But Damages Concerns Persist," published in the August 5, 2024, edition of Law360.
The article concerns the amendment to the Illinois Biometric Information Privacy Act that was signed by Illinois Gov. J.B. Pritzker on August 2, 2024, after passing both chambers of the Illinois Legislature in May with little opposition. The amendment provides that a company which collects a person's biometric information multiple times in the same manner has committed a single violation of the law, and that plaintiffs filing lawsuits under BIPA can't seek damages for each individual time their identifiers were collected.
"Anyone doing business in Illinois must be aware that, without further amendments, there is no way to correct for prior BIPA violation..."
The amendment provides essential clarity in the wake of the Illinois Supreme Court's ruling last year that BIPA claims accrue each time data is unlawfully collected and disclosed, rather than simply the first time.
In its decision, the high court addressed the fear that its finding would result in unconstitutional damages awards that could obliterate businesses and employers, saying the statute's language as written supported that outcome. Policy concerns about massive judgments are "best addressed by the Legislature," the court said, calling on lawmakers to "make clear its intent regarding the assessment of damages under the act."
Illinois businesses had unsuccessfully advocated for the amendment to include a safe harbor provision, which would allow a company that failed to secure the informed consent BIPA requires but didn't distribute the biometric information collected to remedy the violation with a knowing release or confirmation of destruction, David Morrison told Law360.
"By their inaction on crafting a safe harbor provision in this amendment, the Legislature is permitting a punitive law to remain on the books," David is quoted as saying. "So, anyone doing business in Illinois must be aware that, without further amendments, there is no way to correct for prior BIPA violations even if no damage has actually been caused by such a violation."
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