As Illinois employers and businesses recover in a post-pandemic world, the continued and growing threat of The Illinois Biometric Information Privacy Act (BIPA) looms on the horizon. This paper demonstrates that, due to the statute’s vague language and several court decisions interpreting the statutory language, Illinois businesses and employers have been assaulted by a deluge of lawsuits with few if any viable defenses, and the prospect of astronomical damages awards despite the lack of harm to plaintiffs. This paper further demonstrates that the failure to understand how Illinois businesses and employers utilize biometric technology for security, identification, and convenience in the workplace has resulted in an undue hardship placed on businesses. Lastly, this paper demonstrates how the exorbitant and ballooning settlements are unsustainable and crippling to businesses in the state of Illinois.

BIPA was intended as a consumer protection law after a database of biometric data belonging to thousands of people was sold following the bankruptcy of a technology company in 2007. In response, the Illinois General Assembly sought to protect consumers from the risk of having this unalterable data from being compromised. BIPA regulates the collection and handling of biometric identifiers and information by private companies. Though the statute remained largely unutilized for several years after being enacted in 2008, the number of BIPA lawsuits have exploded since 2015. One would imagine that this would result in greater protection against the unscrupulous exposure of consumers’ biometric information. Instead, BIPA, which is recognized as the country’s most stringent biometric privacy law, has simply been turned against Illinois employers. With the Illinois Supreme Court inviting the General Assembly to examine its provisions on damages and the ramifications thereof in its recent Cothron v. White Castle System, Inc. decision, now is the time to assess whether the initial goals of BIPA are being served by the statute as it currently stands and the legal landscape that has grown around it. Simply put, the answer is no. Under BIPA, there has been great financial harm to employers in response to little to no harm to employees. The Legislature should investigate the concerns of the Illinois employer community to ensure that BIPA is more tailored to protection of consumers and deterrence rather than the cataclysmic financial upheaval to Illinois employers.

Juxtaposed with the original purpose of BIPA, this paper explains how litigation under the statute has gone awry by providing a look at the history of BIPA, the courts’ statutory interpretation of the language drafted by the Legislature, and a sampling of the alarming trend of filings and settlements.

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