Statute of Limitations for BIPA Claims Addressed by Illinois Appellate Court

The court concluded that the proper statute of limitations period for claims under the Illinois Biometric Information Privacy Act (BIPA) depends on the section of the Act referenced in the claim.

In September 2019, the trial court in Tims v. Black Horse Carriers, Inc. considered the applicable statute of limitations period for BIPA claims. Since BIPA was not expressly aligned with a specific statute of limitations period, the plaintiff contended that the state's five-year catchall limitation period applied. The defendant countered that Illinois' one-year "invasion of privacy" limitation period applied.

The trial court initially agreed with the plaintiff. On appeal, the court decided that varying statutes of limitations are in effect for claims brought against specific sections of the Act, as described below:

15(a) Governs retention schedules and destruction guidelines for biometric data Five (5) years
15(b) Prohibits the collecting or obtaining of biometric data without written notice and release Five (5) years
15(c) Restricts private parties from selling, leasing, trading, or profiting from biometric data One (1) year
15(d) Prohibits the disclosure and dissemination of biometric data absent specific prerequisites One (1) year
15(e) Requires parties to take reasonable care in storing, transmitting, and protecting biometric data Five (5) years

The three-judge panel held that Illinois' five-year statute of limitations applies to sections 15(a), (b), and (e) of BIPA because those sections "have absolutely no element of publication or dissemination." However, the panel alternatively contended that Illinois' one-year statute of limitations applies to claims brought under sections 15(c) and 15(d) since these qualify as "publication of matter violating the right of privacy." A one-year statute of limitations could not apply to sections (a), (b) and (e) because a plaintiff could bring an action under those sections without having to allege or prove that the defendant published or disclosed any biometric data to any person or entity beyond itself.

Employers are encouraged to review the provisions under the Illinois Biometric Information Privacy Act as we all as internal protocols regarding the handling and management of biometric information to ensure compliance.

Posted: September 28, 2021

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