Illinois’ Biometric Information Privacy Act (“BIPA”) regulates companies that obtain, use, store, sell, and disclose the biometric data of Illinois residents. Companies that fall under BIPA must provide notice to and receive consent from Illinois residents before obtaining their biometric data, and must take reasonable care that the biometric data remains secure. In addition, BIPA includes a private right of action, and if a regulated company fails to comply with its provisions, statutory damages can be as high as $5,000 for each violation. BIPA litigation is active in Illinois State Court and in Federal Courts across the United States.
A sticking point for litigants has been the statute of limitations for a party to bring a BIPA claim. BIPA does not include its own statute of limitations. Generally speaking, plaintiffs have argued that a longer limitations period applies, such as the five-year limitations period under section 13-205 of Illinois’ Code of Civil Procedure. And generally speaking, defendants have argued that a shorter limitations period applies, like the one-year period under section 13-201 of the Code of Civil Procedure.
Clearer guidance on the correct statute of limitations for BIPA claims will allow companies to better manage their biometric data and manage their liability risks.
In September, an Illinois appellate court split the baby: It held that “section 13-201 governs actions under section 15(c) and (d) of the Act, and section 13-205 governs actions under section 15(a), (b), and (e) of the Act.” Sections 15(c) and 15(d) govern the sale and disclosure of biometric data, sections 15(b) and (e) govern the collection and storage of biometric data, and section 15(a) governs written policies on and the destruction of biometric data.
Just last week, on January 26, 2022, the Illinois Supreme Court granted a petition for leave to appeal this case. It is a small step, but hopefully one step closer to the Illinois Supreme Court resolving once and for all what statute of limitations governs BIPA.
We are available to answer your BIPA questions and are continuing to monitor BIPA developments.