The Illinois legislature is considering a bill that would prohibit Biometric Information Privacy Act (Privacy Act or BIPA) per-scan damages and provide a potential lifeline to employers that face potentially catastrophic damages awards for technical violations.

On April 11, 2024, the Illinois Senate passed Senate Bill (SB) 2979, which would stop statutory damages under the Privacy Act from accruing for each unlawful collection or dissemination of an individual’s biometric information.

Quick Hits

• The Illinois legislature is considering a bill that would amend the Privacy Act to prohibit statutory damages per violation from accruing per scan.
• The bill comes in response to an Illinois Supreme Court decision holding that the Privacy Act claims accrue per scan.

The Privacy Act provides for statutory damages of $1,000 or $5,000 per violation. SB2979 would amend the Privacy Act to clarify that when a private entity in multiple instances collects or disseminates the same biometric identifier from the same individual in a way that violates the act, it is considered a single violation.

The bill comes in response to the February 2023 Supreme Court of Illinois decision in Cothron v. White Castle System Inc. in which the court held that the plain language of the Privacy Act “demonstrates that … violations occur with every scan or transmission.” The Illinois Supreme Court later declined to reconsider the decision despite concerns raised by the business community.

The ruling allows for potential excessive damages awards because unlawful scans or transmissions may occur multiple times per day and quickly accrue. The majority in Cothron recognized the potential issue with per-scan damages, and called on the “legislature [to] review these policy concerns and make clear its intent regarding the assessment of damages.”

Next Steps

The traction SB2979 is gaining in the Illinois legislature suggests that lawmakers recognize the business community’s concerns with per-scan damages. The bill recently moved out of the House Judiciary-Civil Committee and hope remains that it will pass by the end of the 2024 legislative session, which is set to adjourn on May 24, 2024.