Eye On Illinois: Long-awaited BIPA tweaks being reflected in judicial rulings

Back in the waning days of the 20th century, while serving on the high school newspaper staff, our adviser Mrs. Schneider taught me a lesson I’ve not forgotten.

Faced with negative feedback from a column, I insisted the audience had missed my point. But readers’ lack of understanding, she explained, was evidence not of poor comprehension but proof the writer didn’t effectively communicate the message. In other words: write it better next time, kid.

That guidance rattled in my brain while reading an opinion from U.S. District Judge Elaine Bucklo dismissing a complaint filed under the Biometric Information Privacy Act … along with every social studies teacher who explained the separation of powers under our three branches of government.

Bucklo’s decision flows directly from this spring’s passage of Senate Bill 2979, a substantial modification of BIPA some 16 years after its initial enactment. Lawmakers – with aye and nay votes from both sides of the aisle – signed off on clarifying that companies are liable for improperly collecting personal data from employees or customers, but not exposed to individual penalties for each successive use.

In other words, if a business doesn’t require informed, written consent from patrons before recording their fingerprints, that’s the statutory violation, it isn’t repeated every time each user provides a fingerprint at the login kiosk.

The initial law lacked that clarity. As a civil statute, the ramifications materialized through litigation, particularly lawsuits targeting workplaces where employees use biometric access consistently during each shift for access to things like locked cabinets and point-of-sales terminals.

In February writing a minority opinion in Cothron v. White Castle System, Supreme Court Justice David Overstreet wrote that “Surely the potential imposition of crippling liability on businesses is a proper consequence to consider.”

Had the original drafters written the law better, we might’ve been spared a decade of trial lawyers, judges and business defendants haggling over whether consequences were indeed unintended. Rather than concede that all those parties simply couldn’t understand legislators’ goals, reformers prevailed by convincing enough folks the original BIPA wasn’t fully baked.

That gets back to the civics class checks-and-balances discussion. Overstreet, a Republican, got Lisa Holder White, the court’s other Republican, and Chief Justice Mary Jane Theis, a Democrat, to co-sign his dissent. Lawmakers don’t always listen to the top court, especially a minority, but this message rang through with a simple thesis: the law could and should be improved.

Judges didn’t legislate from the bench, per a common criticism, but observed repercussions and asked the General Assembly to revisit the drawing board. Then 127 lawmakers and the governor agreed on a fix, and the new day dawned.

Agreement with the ultimate resolution notwithstanding, this at least represents democracy at work.

• 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.