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A big BIPA decision: Plaintiffs have 5 years to file biometrics claims

A big BIPA decision: Plaintiffs have 5 years to file biometrics claims

A lawsuit limitation decision involving biometrics privacy has been handed down by the U.S. state of Illinois’ Supreme Court. It gives plaintiffs five years to sue private organizations that break the state’s landmark Biometric Information Privacy Act.

This is just one of many significant decisions coming out of BIPA, and almost all of them have been bitter pills for businesses – predominantly those being sued by employees forced to give up fingerprint and/or face scans when starting and ending a work shift.

There might be future cases that examine some aspects angles that were not argued in this case, Tims v. Black Horse Carriers (19CH3522)

In Tims, a lower court had decided that plaintiffs had a year to file a lawsuit against defendants. The Supreme Court said that court decided in error, and the Justices gave plaintiffs five years to file a complaint.

In a previous decision, it was decided that plaintiffs can sue for each violation, which continues to cause acute anxiety among employers using biometric scanners. The Supreme Court’s decision makes these payouts potentially five times greater.

BIPA is an attempt by lawmakers to give people more agency with their only permanent and irreplaceable identifiers.

Any private organization collecting any biometrics while doing business with Illinois residents has to get express consent to do so, protect the data and make clear how it will be managed.

There might be a toehold or two in Tims for future defendants.

Danielle Kays, senior counsel with law firm Seyfarth Shaw, says she is surprised that the justices did not address some cross-over issues between BIPA and the state’s Right of Publicity Act.

Defendants have clung to this act because plaintiffs have a year in which to file a claim, and relevant general legislation in Illinois commands a five-year statute of limitations. They need to cap their penalties by convincing the legal system that BIPA is highly related to the publicity act.

It might be a heavy lift. The Supreme Court, in its decision, writes that “had the legislature intended to include any privacy action that merely concerns or pertains to publication, it would have used such broad language.”

For the time being at least, Tims goes back to a circuit court for further lawyering.

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