{"id":1182993,"date":"2023-03-06T15:10:07","date_gmt":"2023-03-06T20:10:07","guid":{"rendered":"https:\/\/bugaluu.com\/news\/illinois-torched-business-and-common-sense-with-its-biometric-privacy-law\/1182993\/"},"modified":"2023-03-06T15:10:07","modified_gmt":"2023-03-06T20:10:07","slug":"illinois-torched-business-and-common-sense-with-its-biometric-privacy-law","status":"publish","type":"post","link":"https:\/\/bugaluu.com\/news\/illinois-torched-business-and-common-sense-with-its-biometric-privacy-law\/1182993\/","title":{"rendered":"Illinois Torched Business And Common Sense With Its Biometric Privacy Law"},"content":{"rendered":"
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Illinois Torched Business And Common Sense With Its Biometric Privacy Law<\/span><\/p>\n

\n

By Mark Glennon of Wirepoints<\/a><\/em><\/p>\n

How sadly ironic that White Castle became the latest victim of the Illinois General Assembly\u2019s malfeasance. Its stores are modeled after the Chicago Water Tower, which survived the Chicago Fire and stands as a monument to the spirit of tenacity and resilience that once prevailed to rebuild the city.<\/p>\n<\/p>\n

Today, Mrs. O\u2019Leary\u2019s cow is the state\u2019s own government. It set off what the law firm Mayer Brown rightly calls<\/a> a \u201csix-alarm fire for businesses with customers or employees in Illinois.\u201d<\/p>\n

BIPA, the Biometric Information Privacy Act,<\/a> arises from a legitimate concern, as most laws do. In this case, it\u2019s privacy of personal biometric information such as fingerprints, DNA and distinctive elements of things like face and retina features.<\/strong> Some of that data is used widely in the business world for things like time management, security, wellness programs and worker safety. The law requires informed consent prior to collecting the data, mandates protection and retention guidelines and bans profiting from selling the data.<\/p>\n

That\u2019s fine, but the problem is that the law imposes penalties wildly out of proportion to the seriousness of noncompliance or amount of harm done by a violation.<\/strong><\/p>\n

It can be a death penalty for violators. And the law allows anybody affected to sue for those fines.<\/p>\n

That\u2019s a firebomb recipe for personal injury lawyers. Nearly 2,000 lawsuits alleging violations of BIPA have been filed since 2017, \u201cyielding a series of massive settlements and judgments,\u201d as Reuters reported<\/a>. Defendants have included Facebook, which paid $650 million to settle a BIPA class action and BNSF Railway Co, which a jury ordered to pay $228 million to truck drivers. Anybody thinking about suing enjoys a very generous five-year statute of limitations.<\/p>\n

Then came last week\u2019s decision<\/a> on White Castle from the Illinois Supreme Court, pouring accelerant on the fire.<\/strong><\/p>\n

Separate BIPA violations occurred every time<\/em> an employee used White Castle\u2019s system that required its employees to scan their fingerprints to access their pay stubs and computers, the court ruled. And BIPA authorizes statutory damages of $1,000 for \u201ceach violation\u201d of the statute, or $5,000 if the violation is intentional or reckless.<\/p>\n

The top court\u2019s decision therefore could mean a $17 billion liability for White Castle since some 9,500 current and past employees had used the system for years<\/strong>, as a dissenting opinion says, citing White Castle\u2019s estimate. The court\u2019s decision \u201ccould easily lead to annihilative liability for businesses,\u201d\u00a0says the dissent.<\/p>\n

That\u2019s what makes the decision terrifying for many other businesses that use biometrics. Every instance of use could mean a penalty of $1,000 or $5,000.<\/p>\n

The decision \u201cleaves the plaintiffs\u2019 bar with an all-you-can-eat biometric caf\u00e9,\u201d <\/strong>wrote the law firm Winston & Strawn<\/a> in its newsletter.<\/p>\n

A liability that big would destroy White Castle many times over. It\u2019s not that big a company<\/a> compared to many publicly owned food chains and is privately owned.<\/p>\n

Sorry, said the majority of the court said in their opinion, the plain language of the statute required that result. If this needs to be fixed it\u2019s up to the General Assembly. \u201cUltimately,\u201d the majority opinion says, \u201cwe continue to believe that policy-based concerns about potentially excessive damage awards under the Act are best addressed by the legislature.\u201d<\/p>\n

That\u2019s the real takeaway \u2013 the General Assembly should have fixed this long ago. The liabilities being imposed under BIPA have been burning out of control for several years, and the ruling making each instance subject to a penalty has long been feared, having percolated up through the courts for several years. Bills to fix it have languished.<\/p>\n

The dissent argued that only one violation should be recognized for any employee for the first time fingerprints are collected, and that the law must have been intended that way.<\/p>\n

Right or wrong, that\u2019s now water under the bridge. The top court has ruled. Only the General Assembly can fix the statute.<\/p>\n

One next potential victim of BIPA may be the cannabis industry, an increasingly important revenue force for the state, according to lawyers<\/a> at Dentons U.S. \u201cBIPA damages could be a death knell to cannabis operators,\u201d they wrote, explaining,<\/p>\n

\n

The <\/em>cannabis industry has placed a strong emphasis on security for grow facilities and dispensaries. These enhanced security measures are a must to protect employees handling largely cash transactions and customers purchasing a heavily regulated product. \u00a0But, in taking these reasonable security measures, the cannabis industry has opened itself up to litigation surrounding BIPA\u2019s stringent requirements. <\/em><\/p>\n<\/blockquote>\n

The majority opinion in White Castle\u2019s case says, \u201cWe respectfully suggest that the legislature review these policy concerns and make clear its intent regarding the assessment of damages under the Act.\u201d<\/strong><\/em><\/p>\n

That\u2019s being too nice. Nobody should be \u201crespectfully suggesting\u201d anything to legislature about this. They should have fixed BIPA long ago. Fix it now.<\/p>\n

In the meantime, any business touching Illinoisans in any way that uses biometrics should follow the advice of many lawyers:<\/strong> At least mitigate your exposure by immediately reviewing policies and practices related to biometric information to ensure BIPA compliance, including biometric use for employee timekeeping.<\/p>\n<\/div>\n

Tyler Durden<\/a><\/span>
\nMon, 03\/06\/2023 – 19:00<\/span><\/p>\n

From:Zerohedge<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

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