DeKalb Times

State Rep. Jeff Keicher (R-Sycamore) recently filed legislation designed to combat the unintended consequences of rulings on the Biometric Information Privacy Act.

"It’s no secret Illinois is already one of the most difficult places in the country to start and grow a business," Keicher wrote in a Feb. 22 news release. "The recent decisions by the Illinois Supreme Court concerning our biometric privacy law highlight just how bad the climate is for job creators and why we need to take action quickly to address the unintended consequences."

The Biometric Information Privacy Act dates back to October 2008 and laid out what qualifies as a biometric identifier and what doesn't. Biometric identifiers include retina or iris scans, fingerprints, voiceprints, scans of hand or face geometry. Biometric identifiers do not include writing samples, written signatures, photographs, human biological samples used for valid scientific testing or screening, demographic data, tattoo descriptions, or physical descriptions such as height, weight, hair color, or eye color. Biometric identifiers also do not include donated organs, tissues, or parts as defined in the Illinois Anatomical Gift Act or blood or serum stored on behalf of recipients or potential recipients of living or cadaveric transplants and obtained or stored by a federally designated organ procurement agency.

The first of two bills that Keicher filed, House Bill 3199, was assigned to the House Judiciary - Civil Committee on Feb. 28. It allows for electronic consent to be considered written and sets rules for what a person affected by a violation can act on the supposed violation. The affected individual must provide 15 days written notice, pointing out what part of the act was violated. It also notes that if the private entity takes action to cure the violation, no action for damages against the private entity can occur.

House Bill 2335 lays out when a collecting entity must notify individuals of biometric information collection - "if the biometric identifier or biometric information is collected or captured for the same repeated process, the private entity is only required to inform the subject or receive consent during the initial collection."

In the news release, Keicher refers to a ruling in Cothron v. White Castle, in which the court ruled that any time biometric data is collected without written release a violation occurs, rather than just the first time data is collected. White Castle uses a fingerprint time-clock system, something commonly used by many employers. The ruling opens up White Castle to the possibility of $17 billion in fines, well beyond the intended purpose of BIPA. The second ruling in the case of Tims v. Blackhorse Carriers, Inc. noted that the court ruled that because of ambiguity in BIPA, the 5-year statute of limitations applies for filing suit rather than 1-year as allowed under the Illinois Code of Civil Procedure. Both rulings state that a plaintiff does not need to demonstrate that harm was suffered to seek damages, as is commonplace under most other circumstances.

Jeff Keicher is a state representative who resides in DeKalb and was first elected to the Illinois House in 2018, according to the Illinois House. A Republican, his legislative experience includes serving on the Appropriations-Higher Education and Immigration & Human Rights Committe.