Will the proposed changes to the Biometric Information Data Protection Act (BIPA) be retroactive?
Illinois’ Biometric Information Privacy Act, 740 ILCS 14/1 ff. (BIPA) establishes safeguards and procedures for the retention, collection, disclosure and destruction of biometric data. 740 ILCS 14/15. BIPA was passed in October 2008 and is designed to protect a person’s unique biological characteristics – the data contained in a person’s fingerprint, voice print, retinal scan, or facial geometry. I would. In recent years, BIPA has quickly become the bane of corporate defendants with its statutory penalties of $ 1,000 for any negligent violation and $ 5,000 for any willful or reckless violation. The situation worsened after the decision of the Illinois Supreme Court in Rosenbach v Six Flags Entm’t Corp., 2019 IL 123186. In Rosenbach, the court ruled that there was a “violation” [of BIPA]alone is sufficient to support the legal cause of action of the individual or the customer. “Rosenbach at ¶33 (emphasis added). In other words, a mere violation of the law gives a BIPA claimant credit. See ID.
What would the changes do?
Illinois law is currently considering three bills that will amend BIPA in several ways. Illinois House Bill 559 would protect companies that store a person’s biometric information in the form of indecipherable mathematical representations or encrypted algorithms. Under HB 559, biometric information would by definition not contain “biometric information that cannot be used to restore the original biometric identifier”. HB 559 would also set a one-year statute of limitations commencing on the date the “cause of action” arose and a 30-day period within which the company could cure any alleged breach. If the private institution “actually cures the identified violation” and notifies the injured person, the person cannot bring a “lawsuit for individual statutory damages or class-wide statutory damages …”. Illinois House Bill 559. This “Statutory Damage” has also been redefined. Under HB 559, injured parties would no longer be entitled to statutory damages of $ 1,000 and $ 5,000. Instead, negligent violations would allow a plaintiff to reimburse only “actual damage” and willful misconduct would allow a claimant to reimburse “actual damage plus liquidated damage up to the amount of actual damage”. Illinois House Bill 559. HB 559 has stepped down from the Judiciary Committee and was added to the calendar for debate outside the house.
Illinois House Bill 560, meanwhile, would remove BIPA’s private right of action and give the state of Illinois (through the attorney general, attorney general, or the Department of Labor) the power to enforce BIPA’s provisions. Illinois House Bill 560. HB 560 has not left the regulatory committee. Illinois Senate Bill 330 largely reiterates the changes contained in HB 559, but includes definitions of what it means to cure the violation and when a claim arises. Senate Bill 330 remains on the Judiciary Committee.
Would any of these changes be retroactive?
There are currently hundreds (if not a few thousand) of BIPA lawsuits pending in the state and federal courts of Illinois. If any of these changes were to become law, the crucial question would be which of those changes are retrospective and could affect the pending lawsuits.
Illinois has taken the first step in the United States Supreme Court’s retrospective analysis. People v Stefanski, 2019 IL App (3d) 160140, 12 (citing Landgraf v USI Film Products, 511 US 244 (1994)). Under Landgraf, the first question is whether the legislature has clearly stated the “temporal scope” of the law. I would. If this is the case and there is no constitutional prohibition, the intention of the legislature takes effect. I would. When the legislature’s intent is not clear, the Illinois courts bypass the Landgraf analysis and examine whether the legislative changes are procedural or substantive. I would. at ¶13. Procedural changes to a law are applied retrospectively, while material changes are applied prospectively. I would. The court in Perry versus Dep’t of Fin. & Profi. Regul. noted that the distinction between procedural and substantive changes is of course not always easy. Perry v. Dep’t from Fin. & Profi. Regul., 2018 IL 122349, 69. There is also the general assumption that an amended law “does not apply retrospectively”. Stefanski, 2019 IL App (3d) 160140, ¶13.
None of the three invoices contain a declaration of retroactive effect. The courts in Illinois would therefore have to determine whether the changes are procedural or substantive. The abolition of a private right of action through House Bill 560 would be a significant change as it is an amendment that “creates, defines and regulates the rights, obligations and powers of the parties”. Perry, 2018 IL 122349, 70. The amendment to the definition of “biometric information” by House Bill 559 would also likely be seen as a major legislative change as it would eliminate an entire class of devices and behaviors that were not previously immune to lawsuit. Perry, 2018 IL 122349, ¶71 (“Because [these amendments] If you change the amount of information available, both changes will be material changes. . . [and] may not be applied retrospectively … ”).
The other amendments are not so clear. The change to introduce a one-year limitation period could be applied retrospectively. Changes that “change limitation periods” are considered procedural, ie they can “take retroactive effect”. Wanless v. Burke, 253 Ill. App. 3d 211, 215 (3rd Dist. 1993). This can be the case in particular if the changes concern a statutory right of action and not a general right. See Stanley v. Denning, 130 Ill. App. 2d 628, 632 (2d Dist. 1970) (“In determining whether a law should be applied retrospectively, we believe that there is an important difference between an amendment that puts an existing time limit affecting legal rights of origin in the As opposed to being changed, those who have their origins in common law. ”). When the legislature has created the law, it has the power to withdraw it. Orlicki v. McCarthy, 4 Ill. 2d 342, 351 (1954). The change to add a BIPA statute of limitations, if passed, could affect the statute of limitations for current and future cases, especially because the current statute of limitations is not fixed.
Lump-sum damage could also be remedied retrospectively. Legislative changes that affect available remedies are often viewed as procedural rather than substantive. Dardeen v Heartland Manor, Inc., 186 Fig. 2d 291, 299 (1999). Changes to remedies can therefore be applied to a pending lawsuit “regardless of when the cause of action arose or the complaint was filed”. I would. At Dardeen, the Illinois Supreme Court ruled the repeal of a triple damage rule based solely on appeal and was therefore procedural in nature. I would. A plaintiff has no vested right to “exemplary, punitive, vengeful or aggravated damages”. I would. However, fifteen years later, the Illinois Supreme Court ruled that an appeal change was substantive because it created “an entirely new form of liability.” People ex rel. Madigan v JT Einoder, Inc., 2015 IL 117193, ¶36. In the Einoder case, the Illinois Supreme Court ruled that the amendment could not be applied retrospectively because it resulted in a “substantial change in law” by adding “new liability” to the defendants’ conduct in the past. I would. It is an interesting question whether the cancellation of the liquidated damages only concerns a legal remedy (Dardeen) or imposes a new burden on the plaintiffs (Einor).
The proposed changes to the BIPA are intended to provide clarity and relief to corporate defendants. But, even if passed, the amendments raise further questions about their retroactive effect and the full extent of the relief they could give the defendants.
 BIPA does not contain any limitation period. Defendants have argued that the one-year statute of limitations should apply to data protection claims (735 ILCS 5 / 13-201), while plaintiffs have advocated the five-year statute of limitations (735 ILCS 5 / 13-205). The Illinois Court of Appeals stands ready to determine the statute of limitations applicable to BIPA claims in Tims v Black Horse Carriers, Inc., Case No. 1-20-0563 (1st Dist.).