Eye On Illinois: At justice’s request, Senate Dems work to lessen potential BIPA damages

It’s commonly believed that Democrats rule Illinois in lockstep – a reasonable conclusion given the second-term Democratic governor, the legislative supermajority and the 5-2 Supreme Court.

But the party is diverse (or divided, depending on your preferred framing), different branches have different priorities. And occasionally, a Republican voice breaks through and compels action.

That seems to be the case with Senate Bill 2979, which passed the Senate 46-13 Thursday. As Hannah Meisel reported for Capitol News Illinois, the plan would significantly modify the 2008 Biometric Information Privacy Act to clarify that companies would be liable for improperly collecting personal data from employees or customers, but would not trigger an individual penalty for each successive use.

In other words, if a gym doesn’t collect informed, written consent from patrons before it records their fingerprints, that’s the statutory violation, it isn’t repeated every time each user provides a fingerprint at the login kiosk. The potential exposure is exponential at workplaces where employees use biometric access for things like access to cash registers, point-of-sales terminals and locked cabinets.

Of course, as with all laws, the easiest way to avoid the punishment is to follow the rules. But this isn’t a criminal situation where police seek violations. It’s a civil issue, so penalties have all filtered through litigation, including several large settlements – with healthy percentages for law firms – that put some companies at risk of collapsing and scare others into lobbying for change.

Those interests found a key Republican supporter in February 2023:

“Surely the potential imposition of crippling liability on businesses is a proper consequence to consider.”

Supreme Court Justice David Overstreet wrote than sentence in his minority opinion in Cothron v. White Castle System. The other dissenting justices were Lisa Holder White, the court’s other Republican, and Chief Justice Mary Jane Theis, a Democrat.

General Assembly Democrats took that invitation, considered the consequences and drafted a bill that significantly reduces financial liability. We can argue whether this constitutes being “soft on crime” or debate the extent to which BIPA has protected illinoisans since 2008. We can note the few Republicans who did support SB 2979, like Minority Leader John Curran, of Downers Grove, did so while urging even stronger reforms.

But regardless of House action, it’s worth noting many Senate Democrats blinked and bowed to pressure from outside their caucus after many years being content with the rules their forebears implemented.

Further, we could remove all political considerations and frame this issue as one of a fixing a flawed law – not regarding constitutionality but because drafters didn’t adequately contemplate consequences of leaving certain legal questions unanswered.

This bill may not present ideal resolutions, but Overstreet was right: lawmakers needed to provide further clarity.

• Scott T. Holland writes about state government issues for Shaw Local News Network. Follow him on X @sth749. He can be reached at sholland@shawmedia.com.