Recently, the Illinois Appellate Court for the First District issued a significant decision on the question of which statute of limitations govern claims for violations of the Illinois Biometric Information Privacy Act (“BIPA”). In its opinion, the Court ruled that claims for unlawful profiting from or disclosure of biometric data, those brought under sections section 15(c) and (d) of the BIPA, are subject to a one year limitations period while claims involving violations of the notice, consent and retention requirements, those brought under sections 15(a), (b), and (e) of the BIPA, are subject to a limitations period of five years. This decision should bring much needed clarity to class-action plaintiffs and defendants alike.
The BIPA, one of the most robust privacy statutes in the country, imposes various obligations on anyone that collects, stores or uses biometric identifiers such as fingerprints, retina or iris scans, voiceprints, or face geometry from Illinois residents. Failure to comply with the BIPA’s requirements can be costly as violations of the statute entitle successful plaintiffs to statutory damages ranging from $1,000 to $5,000 for each violation (plus attorney fees). This can add up quickly as claims for violations of the BIPA are frequently brought as a class action as we have seen in recent years.
The underlying case was brought by two former drivers for Black Horse Carriers, a trucking and logistics company. The plaintiffs filed the case as a class action. In their lawsuit, the former drivers alleged that Black Horse failed to obtain consent to use drivers’ fingerprints or to institute a retention schedule. They also accused the company of unlawfully disseminating their biometric data by sharing fingerprints with a third-party vendor that processed timekeeping records for the company.
Black Horse sought to dismiss the claims on the grounds that they were filed outside of the statute of limitations. The trial court denied the motion but granted Black Horse permission to file an interlocutory appeal on the question of the appropriate limitations period for claims under the BIPA. Black Horse contended that the claims were subject to a one-year limitations period found in section 13-201 of the Code of Civil Procedure, which applies to state law claims for actions involving the “publication of matter violating the right of privacy.” The plaintiffs argued instead that the catchall five-year limitations period found in section 13-205 governed the claims.
On appeal, the Court clarified that certain types of violations are subject to the shorter one-year limitations period while others were governed by the longer five-year limitations period. In reaching its decision that different BIPA claims are subject to different limitations periods, the Court concluded that section 13-201 does not encompass all privacy actions but only those where “publication is an element or inherent part of the action.”
A company could violate sections 15(c) or (d) of the BIPA by selling or trading biometric data or disclosing or disseminating biometric data without consent respectively. In these instances, the Court reasoned that the one-year limitations period under section 13-201 would apply since “publication or disclosure of biometric data is clearly an element” of such violations. However, the Court found that because the obligations imposed under sections 15(a), (b) and (e) of the BIPA do not have an element of publication or dissemination, the five-year catchall limitations period under section 13-205 would apply.
The Court’s full opinion is available online here.
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