Illinois Lawmakers Nearing Passage Of Bill To Stop ‘Per-Scan’ Damages For Privacy Act Violations – Privacy Protection

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.

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