Senate President Don Harmon told Public Radio
talk show host Brian Mackey in late June that some of the most prominent
business association leaders had “punched us in the nose” after the Senate
Democrats devised what he called a “good faith solution” to solve problems
created by the state’s super-controversial Biometric Information Privacy Act.
Harmon also claimed the Senate Democratic proposal the business groups attacked
was “very friendly to the business community that has been asking for these
changes.”
Companies routinely collect biometric data like
facial recognition and fingerprint scans. But, in Illinois, that’s illegal
unless the companies first obtain informed consent. Lots of lawsuits have been
filed as a result and businesses want relief.
The Illinois Supreme Court all but begged the
General Assembly earlier this spring to take another look at the law in its
ruling against the White Castle company. That ruling could ultimately cost the
burger chain as much as $17 billion for collecting employee fingerprint scans.
The Illinois Retail Merchants Association, the
Illinois Manufacturers’ Association and the Illinois Chamber of Commerce held a
press conference with other business leaders near the originally scheduled end
of the spring legislative session to denounce the Senate Democrats’ proposal in
no uncertain terms. Illinois Manufacturers’ Association President and CEO Mark
Denzler, who has not exactly been known for vitriol, claimed the proposal would
make the problem even worse. The legislation, Denzler claimed, “will only
increase abuse of this law by trial attorneys” who have filed thousands of
claims under the statute.
The three business groups either refused to respond
to Harmon’s comments, or, in one case, didn’t respond at all.
Senate President Pro Tempore Bill Cunningham,
who helped lead the negotiations and is also not generally known for his
temper, said he was even more upset than Harmon after the business groups’
press conference. He said he reached out to them and said the Democrats were
“trying to draft a pro-business piece of legislation,” and since they claimed
the bill would make matters worse, he and the Senate Democrats decided to not
run any bill during the spring session and maintain the status quo.
The Supreme Court ruled that the legislative
intent of BIPA was to penalize each and every collection of employee biometric
information. With large numbers of White Castle employees being scanned several
times a day for five years, “that’s how we ended up with a $17 billion”
penalty, Cunningham said. The Democratic proposal would’ve specifically changed
the law to base the penalty on the number of employees, not the number of
scans. But they also increased the penalty from $1,000 to $1,500, which the
business groups denounced as well.
Opponents of the BIPA law claim the original
state statute has little to nothing to do with the real world. The idea behind
the law is to protect people against having their biometric data stored and
even traded without their knowledge or permission. After all, an online
password can be changed after a data hack, but people can’t just change their
fingerprints to protect their identities.
All true, the critics say, but the fingerprints
that are used to verify timecards, etc. aren’t kept or stored after they are
scanned. Instead, the fingerprints are immediately converted into a set of
numbers using a proprietary algorithm.
“The only biometric information utilized by
employers to identify employees is an encrypted string of numbers, systemically
created as a result of the mathematical algorithm,” according to a white paper
released last week by Littler, a pro-employer law firm. “There is no biometric
identifier being stored or disseminated,” and, therefore, “it is virtually
impossible to reverse engineer an employee’s original fingerprint.”
Cunningham said he heard a theory from a
Republican lawmaker that the business groups have been told by the corporate
defense bar that they’re confident they can get the state law overturned by the
U.S. Supreme Court, so there was no reason to settle for a compromise at the
state level. “I have no idea if that’s true or not,” Cunningham said, “But it’s
a better explanation that I can come up with.”
Another person close to the issue said the
Senate Dems ordered the handful of people involved with the talks to not
communicate with anyone outside the room. The business groups, this person
claimed, weren’t experts on the topic, so it wasn’t until the actual
legislation surfaced when experienced business lawyers could see what was going
on, and that’s when everything fell apart. Cunningham said that while they took
input from others, the “big lobbying groups” were what they were most concerned
with.
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This article appears in Grillin’ and Chillin’ 2023.
