Illinois business community fighting for further reform of biometrics regulation

The business community in Illinois, and in particular representatives of big tech, want further reform to the State’s Biometric Information Privacy Act (BIPA) so the it does not deter the development of artificial intelligence software in the State, and IT infrastructure more broadly.

Thousands of lawsuits have been filed under BIPA so far, with claims adding up to billion of dollars in damages. Most complaints were either for employers failing to meet the informed consent requirements of the law, or big tech firms using biometric systems automatically for users.

The State Supreme Court decisions that BIPA violations themselves constitute “injury” or “harm” and that damages accrue with each individual scan of a plaintiff’s biometrics raised the stakes by expanding the law’s applicability and increasing the potential financial penalties for businesses.

An amendment to BIPA passed last August reversed the Supreme Court position. SB 279 specified that damages, which can range from $1,000 to $5,000 per violation, do not accrue with each non-compliant biometrics scan. Since then, the number of biometric data privacy lawsuits filed in the State has fallen, but the new version has given rise to competing interpretations of whether the non-accrual of violations applies to all lawsuits under BIPA or only those filed after the passage of the amendment.

Defense law firm of Duane Morris counts 107 BIPA lawsuits filed between January and September of this year, compared to 427 across the 12 months of 2024, according to Legal Newsline.

Virginia-based tech industry trade body Chamber of Progress Regional Director of State and Local Government Relations Kouri Marshall says the group is telling state lawmakers that BIPA must change again to avoid holding back the economic benefits of emerging technologies like AI, The Center Square reports.

“But the companies that are bringing that kind of essential development view Illinois as a legal minefield. And it deters companies from rolling out useful technology in Illinois.”

No specific example of a useful technology Illinoisans are missing out on was provided.

Labor unions with political cache have also come out in favor of BIPA reforms that may lead to job growth.

But BIPA could still lead to job losses in the state, depending on how the accrual interpretation works out, according to the U.S. Chamber of Commerce. The group said in a recent amicus brief that the amendment was clearly intended to protect businesses in the state from suffering financial ruin under the law, meaning the reform should apply retroactively.

Smith Amundsen Attorney John Ochoa told Legal Newsline that most cases were already being settled on a per-person rather than per-scan basis. The settlement demands he has seen, accordingly, have not changed much.

The Seventh Circuit Appeals Court is currently hearing multiple cases filed before SB 279 was enacted, but they may ultimately wind up being decided by the State Supreme Court.