• Illinois Acts to Protect Biometric Information
  • November 13, 2008 | Author: Michael Robert Lied
  • Law Firm: Howard & Howard Attorneys PLLC - Peoria Office
  • Illinois recently enacted the Biometric Information Privacy Act, Public Act 95-0994.

    The new law regulates collection, use and destruction of biometric information and seeks to make identity theft more difficult.

    To justify the new law, the General Assembly made these findings:

    • The use of biometrics is growing in the business and security screening sectors.
    • Biometrics are unlike other unique identifiers that are used to access finances or other sensitive information.  For example, social security numbers, when comprised, can be changed.  Biometrics, however, are biologically unique to the individual; therefore, once comprised, the individual has no recourse, is at heightened risk for identity theft, and is likely to withdraw from biometric-facilitated transactions. 
    • An overwhelming majority of members of the public are weary [sic] of the use of biometrics when such information is tied to finances and other personal information.
    • The public welfare, security, and safety will be served by regulating the collection, use, safeguarding, handling, storage, retention and destruction of biometric identifiers and information.

    The statute contains several important definitions.

    “Biometric identifier” means a retina or iris scan, fingerprint, voiceprint, or scan of hand or face geometry. 

    “Biometric identifiers” do not include (1) writing samples, (2) written signatures, (3) photographs, (4) human biological samples used for valid scientific testing or screening, (5) demographic data, (6) tattoo descriptions, (7) physical descriptions such as height, weight, hair color, or eye color, (8) Donated organs, tissues, or parts as defined in the Illinois Anatomical Gift Act or blood or serum stored on behalf of recipients or potential recipients of living or cadaveric transplants and obtained or stored by a federally designated organ procurement agency, (9) biological materials regulated under the Genetic Information Privacy Act, (10) information captured from a patient in a health care setting or information collected, used, or stored for health care treatment, payment, or operations under the federal Health Insurance Portability and Accountability Act of 1996, or (11) an X-ray, roentgen process, computed tomography, MRI, PET scan, mammography, or other image or film of the human anatomy used to diagnose, prognose, or treat an illness or other medical condition or to further validate scientific testing or screening.

    “Biometric information” means any information, regardless of how it is captured, converted, stored, or shared, based on an individual’s biometric identifier used to identify an individual.  Biometric information does not include information derived from items or procedures excluded under the definition of biometric identifiers. 

    “Confidential and sensitive information” means personal information that can be used to uniquely identify an individual or an individual’s account or property.  Examples of confidential and sensitive information include, but are not limited to, a genetic marker, genetic testing information, a unique identifier number to locate an account or property, an account number, a PIN number, a pass code, a driver’s license number, or a social security number.

    “Private entity” means any means any individual, partnership, corporation, limited liability company, association, or other group, however organized.  A private entity does not include a State or local government agency.  A private entity does not include any court of Illinois, a clerk of the court, or a judge or justice thereof.

    “Written release” means informed written consent or, in the context of employment, a release executed by an employee as a condition of employment.

    Section 15 of the statute regulates the retention, collection, disclosure and destruction of biometric information.

    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 competent jurisdiction, a private entity in possession of biometric identifiers or biometric information must comply with its established retention schedule and destruction guidelines.

    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:

    • informs the subject or the subject’s legally authorized representative in writing that a biometric identifier or biometric information is being collected or stored;
    • 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 identifier or biometric information is being collected, stored, and used; and
    • receives a written release executed by the subject of the biometric identifier or biometric information or the subject’s legally authorized representative.

    No private entity in possession of a biometric identifier or biometric information may sell, lease, trade, or otherwise profit form a person’s or a customer’s biometric identifier or biometric information.

    Similarly, no private entity may disclose, redisclose, or otherwise disseminate a person’s or a customer’s biometric identifier of biometric information unless:

    • the subject  of the biometric identifier or biometric information or the subject’s legally authorized representative consents to the disclosure or redisclosure;
    • 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;
    • the disclosure or redisclosure is required by State or federal law or municipal ordinance; or
    • the disclosure is required pursuant to a valid warrant or subpoena issued by a court of competent jurisdiction.

    A private entity in possession of a biometric identifier or biometric information shall:

    • 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
    • store, transmit, and protect from disclosure all 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.

    The statute, at section 20, provides a right of action for violations. 

    Any person aggrieved by a violation of the Act has a right of action in the circuit court or as a supplemental claim in federal district court against an offending party.  If the plaintiff prevails, he may recover for each violation:

    • against a private entity that negligently violates the Act, liquidated damages of $1,000 or actual damages, whichever is greater; and
    • against a private entity that intentionally or recklessly violates the Act, liquidated damages of $5,000 or actual damages, whichever is greater.

    Plaintiff may also seek reasonable attorneys’ fees and costs, including expert witness fees and other litigation expenses.  The court may grant other relief, including an injunction.

    The effective date of the new statute is October 3, 2008.