September 11, 2020 Top Story

Beware BIPA: Biometric Privacy Act Has Bite

Illinois privacy act violations prove costly to businesses and insurers alike

By Grant H. Hackley

A business is entitled to insurance coverage for claims arising from violations of the Illinois Biometric Information Privacy Act (BIPA), even though the policy of insurance excluded coverage for violations of statutes, according to the Illinois Court of Appeals, First District. In West Bend Mutual Insurance Company v. Krishna Schaumburg Tan, Inc., the court affirmed summary judgment in favor of an insured seeking coverage for a proposed class suit asserting technical breaches of privacy protections. However, experts suggest that the playing field is changing for biometric information breach claims, that insurance coverage is case specific, and that the bottom-line result is highly dependent upon jurisdiction.

The tanning salon collected the plaintiff's fingerprint to allow access to the facility

The tanning salon collected the plaintiff's fingerprint to allow access to the facility

Credit: Wipada Wipawin | iStockphoto by Getty Images

Illinois Leads the Way

From the first successful criminal fingerprint identification in 1892, in Buenos Aires, Argentina, to the first criminal trial in the U.S. utilizing fingerprints for identification, held in Chicago in 1910, biometric fingerprint information has been collected and used for identification purposes. More recently, retinal scans, voice prints, and other identifiers have been perfected as a means of authenticating identity. With digital devices readily accessible to the average consumer, biometric information is easier than ever to collect and utilize. Global consulting firm IHS Markit predicted that, as of 2020, 1.6 billion mobile devices would come equipped with fingerprint scanners. However, ABA Section of Litigation leaders point out that only a handful of states have enacted regulations governing the use of biometric information, and that Illinois leads the way when it comes to policing privacy violations.

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