Despite the Illinois legislature passing an amendment aimed at clarifying the Biometric Information Privacy Act (BIPA) last year, confusion remains about whether the measure applies retroactively, leaving pending cases in limbo that may take years to resolve, privacy lawyers said.
[...]
Illinois passed BIPA in 2008, prompted by the company Pay By Touch going bankrupt, noted Blank Rome biometric privacy lawyer Jeff Rosenthal. As a part of its business, Pay By Touch obtained customers' fingerprints, he said, and there was concern that if the company was sold, the new owner would possess that biometric data without the consumer’s consent.
...
The Illinois Supreme Court made two more decisions that further clarified BIPA’s extent. It ruled that BIPA has a five-year statute of limitations in the 2023 Tims v. Black Horse Carriers, Inc. case, Rosenthal said. In Cothron v. White Castle that same year, the court ruled that BIPA as written fell under the per scan theory, meaning every use of biometrics without consent counted as a violation. However, the justices invited the legislature to clarify its intent at the end of their opinion, he said.
“They recognized there was a potential ambiguity in the way that BIPA was originally drafted,” said Rachel Schaller, another lawyer at Blank Rome. The court “was unsure whether the Illinois legislature actually intended for statutory damages, liquidated damages, to be assessed every single time someone places their hand on a scanning device.”
To read the full article, please click here (subscription required).
"After Illinois BIPA Amendment, Confusion Lingers Until Higher Courts Rule," by Kara Thompson was published in Privacy Daily on February 28, 2025.