The Illinois Supreme Court today released its groundbreaking decision involving statute of limitations in the notorious Biometric Information Privacy Act (“BIPA”). I have written extensively on the onslaught of complaints on this issue pending in both federal and state courts.
In Tims v. Black Horse, the Illinois Supreme Court reversed the First District Appellate Court and found that the five-year statute of limitations period in section 13-205 of the Illinois Code of Civil Procedure applies to sections 15(a), 15(b), and 15(e) of BIPA, and the one-year statute of limitations period in section 13-201 of the Illinois Code of Civil Procedure applies to claims arising under sections 15(c) and 15(d) of BIPA.
Below are the relevant statutes, bold corresponds with the five-year statute of limitations period, while italics indicates the one-year statute of limitations period applies.
Biometric Information Privacy Act – 740 ILCS 14/15
(a) A private entity in possession of biometric identifiers or biometric information must develop a written policy, made available to the public, establishing a retention schedule and guidelines for permanently destroying biometric identifiers and biometric information when the initial purpose for collecting or obtaining such identifiers or information has been satisfied or within 3 years of the individual's last interaction with the private entity, whichever occurs first. Absent a valid warrant or subpoena issued by a court of competent jurisdiction, a private entity in possession of biometric identifiers or biometric information must comply with its established retention schedule and destruction guidelines. |
(b) No private entity may collect, capture, purchase, receive through trade, or otherwise obtain a person's or a customer's biometric identifier or biometric information, unless it first:(1) informs the subject or the subject's legally authorized representative in writing that a biometric identifier or biometric information is being collected or stored;(2) informs the subject or the subject's legally authorized representative in writing of the specific purpose and length of term for which a biometric identifier or biometric information is being collected, stored, and used; and (3) receives a written release executed by the subject of the biometric identifier or biometric information or the subject's legally authorized representative. |
(c) no private entity in possession of a biometric identifier or biometric information may sell, lease, or otherwise profit from a person's or a customer's biometric identifier or biometric information. |
(d) No private entity in possession of a biometric identifier or biometric information may disclose, redisclose, or otherwise disseminate a person's or a customer's biometric identifier or biometric information unless: (1) the subject of the biometric identifier or biometric information or the subject's legally authorized representative consents to the disclosure or redisclosure;(2) the disclosure or redisclosure completes a financial transaction requested or authorized by the subject of the biometric identifier or the biometric information or the subject's legally authorized representative;(3) the disclosure or redisclosure is required by State or federal law or municipal ordinance; or (4) the disclosure is required pursuant to a valid warrant or subpoena issued by a court of competent jurisdiction. |
(e) A private entity in possession of a biometric identifier or biometric information shall:(1) store, transmit, and protect from disclosure all biometric identifiers and biometric information using the reasonable standard of care within the private entity's industry; and (2) store, transmit, and protect from disclosure all biometric identifiers and biometric information in a manner that is the same as or more protective than the manner in which the private entity stores, transmits, and protects other confidential and sensitive information. |
740 ILCS 14/15 (in relevant part)Illinois Code of Civil Procedure – 735 ILCS 5/13-201 and 735 ILCS 5/13-205
Sec. 13-201. Defamation - Privacy. Actions for slander, libel or for publication of matter violating the right of privacy, shall be commenced within one year next after the cause of action accrued.735 ILCS 5/13-201 |
Five year limitation. Except as provided in Section 2-725 of the "Uniform Commercial Code", approved July 31, 1961, as amended, and Section 11-13 of "The Illinois Public Aid Code", approved April 11, 1967, as amended, actions on unwritten contracts, expressed or implied, or on awards of arbitration, or to recover damages for an injury done to property, real or personal, or to recover the possession of personal property or damages for the detention or conversion thereof, and all civil actions not otherwise provided for, shall be commenced within 5 years next after the cause of action accrued.735 ILCS 5/13-205 |
735 ILCS 5/13-201 and 735 ILCS 5/13-205PROCEDURAL HISTORY
This case originated in the Circuit Court of Cook County, where Black Horse originally moved to dismiss the cause action, arguing that it was untimely and that the one-year statute of limitations applied. The trial court denied this motion and found that it was in fact the five-year statute of limitations period that applies to BIPA. After its motion to reconsider was denied, Black Horse moved to appeal the action and the First District Appellate Court heard the case.
The Appellate Court found that different portions of BIPA had different period of statutes of limitations periods. It found that the provisions which involve “publication” (namely sections 15(c) and (d) of BIPA) as outlined in section 13-205 of the Code of Civil Procedure, the one-year statute of limitations period applies. The Court however found that the other sections of BIPS which did not involve publication (namely sections 15(a), (b), and (e) of BIPA) applied the five-year statute of limitations period.
Black Horse then petitioned for leave to appeal to the Illinois Supreme Court. The Illinois Supreme Court agreed to hear the certified question.
BLACK HORSE’S ARGUMENT
On appeal to the Supreme Court, Black Horse continues to argue that BIPA is only subject to the one-year statute of limitations period. Black Horse maintains that the Biometric Information Privacy Act should be governed by the subsection of the Illinois Code of Civil Procedure entitled “Defamation – Privacy.” It further argues that there should not be two different statute of limitations periods, and that the Privacy one-year statute of limitations should be applied toward the whole Act.
TIMS’ ARGUMENT
While Tims acknowledges that BIPA generally applies as a privacy statute, yet it argues that the five-year statutes apply due to the “publication” element in section 13-201. Given that BIPA generally is not intended to regulate publication, but rather protecting biometric information generally, it is actually the 13-205 provision that should apply in its entirety. Tims agrees with Black Horse that two different statutes of limitations should not apply to different portions of the statute.
SUPREME COURT’S HOLDING
The Supreme Court ruled that there should only be one statute of limitation to apply to BIPA in its entirety. Referring to Sundance Homes, Inc. v. County of Dupage, 195 Ill. 2d 257, 266 (2001) (holding that plaintiff’s claim was barred by the five-year statute of limitations under section 13-205 of the Code of Civil Procedure); In re Marriage of Goesel, 2017 IL 122046 (holding that funds already paid to an attorney in a divorce are not “available funds” as defined in the statute). In Sundance, the court reasoned that applying different statutes of limitations to different portions of the Act in question would “create an unclear, inconvenient, inconsistent, and potentially unworkable regime” in administering the law.
The Supreme Court notes that sections 15(a), 15(b), and 15(e) do not contain any words that would be included in the definition of “publication,” which is included in the language from the Civil Procedure. The Supreme Court further notes that there is language in section 15(c) and 15(d) that “an argument can be made that [words in BIPA] could be defined as involving publication.” ¶ 31 The Court reasons “we acknowledge that the one-year statute of limitations period could be applied . . . we find that it would be best to apply the five-year catchall limitations period codified in section 13-205.” ¶ 32
CONCLUSION
In short, the five-year statute of limitations period is referred to as the “catchall” provision, that applies to civil cases in which the statute does not define the statute of limitations period. The Illinois Supreme Court rejects the notion that the “Definition – Privacy” section applies because of the ambiguous term “publication.” While it is true, as the decision notes that the intent of the legislature was generally to protect consumers from their biometric information being used without their consent, it is hard to believe the purpose of the law was to expand liability so significantly. Regardless, the five-year statute of limitations now applies across the board when it comes to BIPA.