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Anna L. Metzger

Abstract

As technology progresses, businesses are enacting new programs that utilize emerging technology. Biometric data is an example of a tech capability that is becoming more popular for businesses. Companies can use an individual’s unique body data to monitor their employees, collect data, and enhance security and convenience for their customers. While this technology is impressive, it comes with privacy and security concerns. In 2008, Illinois enacted the Biometric Information Privacy Act (BIPA) to address these concerns. BIPA aims to protect individuals by setting strict guidelines for data collection by private entities. Individuals can file suit for violations of this statute, so long as they can show that they are an aggrieved party. Since June 1, 2017, over two hundred class actions have been filed in Illinois alleging claims under BIPA. In 2017, Illinois’s Second District Appellate Court heard an appeal from a ruling in Rosenbach v. Six Flags Entertainment Corp. and set forth an important new interpretation of BIPA. The appellate court found that the plaintiff was not an aggrieved party as they did not assert actual harm from the violation of BIPA. In 2018, Illinois’s First District Appellate Court disagreed with this holding, and in the case of Sekura v. Krishna Schaumburg Tan, Inc., held that a statutory violation of BIPA created an aggrieved party. Also in 2018, the Illinois Supreme Court agreed to hear the appeal of Rosenbach. On January 25, 2019, the Illinois Supreme Court handed down its decision in Rosenbach v. Six Flags Entertainment Corp. In a unanimous decision, the court held a person is “aggrieved” when there is a technical violation of BIPA; a showing of further harm is not necessary to bring a cause of action under the statute. This Comment will examine the Rosenbach decision and analyze its overall logic, application of Illinois’s statute and case law, and appreciation for the intent of the Illinois legislature. Last, this Comment will assess the impact of the Illinois Supreme Court’s decision on the future of biometric data collection and provide suggestions for future corporate compliance.

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