For the first time since 2008, BIPA reform is in the air. On May 16, 2024, the Illinois House of Representatives overwhelmingly approved Senate Bill 2979, which paves the way for final passage to Governor J.B. Pritzker's desk.
Most significantly, the new bill overrules the Illinois Supreme Court's 2023 decision in Cothron v. White Castle Systems. In Cothron, the Illinois Supreme Court held that BIPA plaintiffs could recover liquidated damages of $1,000 (or $5,000) for each unconsented scan of their biometric identifier (e.g., fingerprint, facial scan, etc.). But Senate Bill 2979 prohibits recovery of per-scan damages. If the bill becomes law, a private entity that collects a person's biometric data or discloses it without consent can only be found liable for one BIPA violation as to that person. See S.B. 2979, amending 740 ILCS 14/20. Illinois General Assembly – Full Text of SB2979 (ilga.gov) Upon passage of the amendments to BIPA's damages provision, Cothron will be a dead letter.
The new bill also makes it easier for entities to establish written consent. Specifically, the bill expands BIPA's definition of "written release" to include an "electronic signature"—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." Expressly allowing for consent via electronic signatures will make it easier for companies to obtain and secure records of individuals' consents.
Putting it Into Practice: Until Gov. Pritzker signs Senate Bill 2979, it is not the law of Illinois. If he does (as expected), the amendments will take effect immediately, meaning that per-scan damages will not be available in any pending BIPA lawsuit.
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