Justin Kay Discusses the Illinois Biometric Information Privacy Act

Chicago partner Justin Kay was quoted in the April 2019 edition of Bloomberg Law Special Reports: Business Adjusts to Data and Privacy Rules. Justin was quoted in the section entitled “Biometric Data Privacy Lawsuits on the Rise,” which addresses a recent Illinois Supreme Court decision—Rosenbach—regarding the state’s Biometric Information Privacy Act (BIPA).

According to Justin, the ruling has spurred an increase in new lawsuits. While the first wave of suits focused on large, well-known companies, smaller companies now are being sued. “These small companies just are not aware” of the law, he said. “They probably don’t have the legal budget or even significant legal counsel to deal with something like this.”

While Rosenbach lowered the threshold for making a claim, Justin noted that potential liability for past violations might be limited: “BIPA does not specifically set a statute of limitations, leaving an opening to argue for a reasonable limit … defense would argue it should be perhaps as short as a year.”

Justin was also quoted in a May 2, 2019 article for Legaltech News entitled “Retailers Using Facial Recognition Should Be Wary of Illinois and Followers.” The article addresses a lawsuit filed in federal court in New York in which the plaintiff claims he was misidentified in a string of Apple Store thefts, and that Apple uses facial recognition technology in its stores. Justin was quoted regarding the requirements for using such technology in Illinois: a “company must have written consent from customers and a readily available public policy explaining what the retailer is collecting, why it is collecting, consent to share it and ‘can’t otherwise profit from it.’”