The Biometric Privacy Landscape in Illinois
Illinois has recently entered the litigation spotlight due to the growing number of actions being brought under the state’s Biometric Information Privacy Act (the “Illinois BIPA”). [1] Illinois is one of only several states that have enacted legislation intended to protect the privacy interests associated with individuals’ biometric information. [2] The Illinois BIPA provides that protection by regulating how businesses may collect, use, and store biometric data. Illinois further distinguishes itself, however, as the only state that currently affords a private right of action and statutory liquidated damages for violations of its statute. [3] The insurance coverage issues relating to private actions seeking to enforce the Illinois BIPA may have wider application should other states follow Illinois’ lead.
The Illinois BIPA was enacted in 2008, but litigation did not immediately follow. It was not until 2015 that the first suits began to appear. Seven suits were filed in 2015, and another seven were filed in 2016. The pace of new filings in 2017, however, has been explosive, with more than 30 new class action lawsuits having been filed in just the last four months and with new filings now appearing on an almost daily basis. Any company that is doing business in Illinois and is using biometric information opens itself up to the risks of litigation and liability under the Illinois BIPA. [4]
The plaintiffs in these suits are often employees who are being required by their employers to use fingerprints or handprints to “clock into” work. Additional plaintiffs include customers of providers of various goods and services who are using biometric data to complete transactions. The threat of liability presented by these suits is compounded because they are uniformly styled as class actions. The remedies these plaintiffs seek are similar from case to case and include equitable injunctive relief — to force compliance with the Illinois BIPA — as well as statutory or actual damages, whichever is greater. The statutory damages, referred to in the statute as “liquidated damages,” range from $1,000 for each negligent violation of the act to $5,000 for each intentional or reckless violation of the act. [5] Additionally, the Illinois BIPA provides for the recovery of reasonable attorneys’ fees and costs, including expert witness fees. [6]
The legal claims asserted in suits brought under the Illinois BIPA are also similar from case to case. They typically include counts, or causes of action, for (i) willful and/or negligent violation of the Illinois BIPA and (ii) willful and/or negligent invasion of privacy. These claims often also include allegations that the plaintiffs have suffered injury in the form of mental anguish.
Identifying Possible Coverage
The good news for defendants caught up in litigation under the Illinois BIPA is that the costs of defending against these claims and paying for all or a portion of any settlements or judgments may be covered under one or more of their insurance policies. Whether coverage exists, of course, is dependent upon the terms and conditions of the specific policies a policyholder has in place. The types of policies that may respond to these types of claims include, but are not...
