EPIC Urges Illinois Supreme Court to Uphold Illinois Residents’ Biometric Privacy Rights

April 11, 2022

EPIC has filed an amicus brief in an Illinois Supreme Court case that will determine when a person can sue under the Illinois Biometric Information Privacy Act (“BIPA”). EPIC first filed an amicus brief when the case was before the Seventh Circuit. The Seventh Circuit certified the question to the Illinois Supreme Court.

In the case, Cothron v. White Castle, Ms. Cothron alleges that White Castle collected and disclosed her fingerprints for a decade in violation of BIPA. White Castle argues that it is not liable because plaintiffs can only sue for the very first time their BIPA rights are violated, and the statute of limitations has passed on White Castle’s first violation of Ms. Cothron’s BIPA rights. But the Illinois Supreme Court held in Rosenbach v. Six Flags that people are injured every time their BIPA rights are violated. Based on Rosenbach, the district court and an Illinois state of appeals court have rejected White Castle’s argument, ruling that a person can sue every time their BIPA rights are violated, not only the first time.

EPIC’s amicus brief argues that White Castle misconstrues Rosenbach by focusing on language from that case that discussed BIPA’s purpose while ignoring the court’s clear holding. EPIC argues that White Castle is clearly wrong based on the text of BIPA, that White Castle is “mistaken about the underlying purpose of BIPA,” and that White Castle’s rule “would in fact undermine BIPA’s purposes” because it “would remove the key incentive for companies who previously violated BIPA to come into compliance, adopt responsible biometric data practices, and seek informed consent.” EPIC highlights how White Castle’s proposed rule would harm individuals, for example by enabling abusive biometrics collection companies to collect faceprints and voiceprints clandestinely, wait out the statute of limitations, and then use the data with no penalties. EPIC has filed amicus briefs in other BIPA cases, including Rosenbach v. Six Flags and Patel v. Facebook, and regularly participates as amicus in cases concerning the right to sue for privacy violations.

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