On May 26, 2016, Illinois Senator Terry Link filed a proposed amendment to the Illinois Biometric Information Privacy Act that would presumably ease the rules relating to the collection and use of biometric data. What irked some is that he reportedly tacked it onto a bill that deals with unclaimed property. The next day, Senator Link announced that the amendment was put on hold, but did not disclose any reasons why the amendment stalled.

Privacy advocates have stated that the amendment was not given appropriate public debate, and they are concerned that it would relax existing legal protections for biometric data, including exempting facial recognition software from the law.

As we have reported, both Shutterfly and Facebook faced class action litigation in Illinois for alleged violations of the Biometric Information Privacy Act for using facial recognition technology to identify and tag individuals. Shutterfly settled its case, and Facebook was successful in transferring its case to California, where it is still pending. Snapchat was the most recent technology company that uses facial recognition technology to become a defendant in a class action suit in Illinois in the past few weeks.

Senator Link’s proposed amendment merely adds the words “physical or digital” to the word “photograph” to make it clear that photographs are not included in the law. This hardly appears to change the intent of the law. The amendment further includes a definition of “scan” which clarifies that a scan included in the law is “an in-person process whereby a part of the body is traversed by a detector or an electronic beam.” These changes would in effect confirm that the scanning of a digital photograph of a person’s face is not covered by the law. Some would argue that these changes are merely clarifications to the definitions in the existing law and are consistent with the intent of the law. They are clearly in response to the class action cases against Facebook and Shutterfly, which alleged that facial recognition technology was being used to analyze photographs without individuals’ consent.

The activity in Illinois around biometrics will no doubt shape legislation and litigation in the other states that already have, or are contemplating biometrics information privacy protection laws and we will be watching it closely.

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