Trucking carriers and those who provide them with technology may end up in the midst of various federal and state class-action lawsuits regarding Illinois biometric privacy law compliance, legal experts are saying.
Illinois’ Biometric Information Privacy Act, implemented in 2008, has been brought up in various recent cases–the law states that any business utilizing the collection, usage, and retention of biometric identifying data like iris scans, fingerprints, voice prints, facial geometry scans, or full hand scans must first inform employees of this intent and receive consent to do so. Additionally, the company must ensure and make clear that all records kept are entirely secure.
Overall liability in regards to this law is likely increasing quickly, and Illinois state trucking companies may be subject to more class action lawsuits in the coming months as a result, stated Scopelitis, Garvin, Light, Hanson & Feary in a recent public notice. These potential increases come after a December Illinois appellate court opinion expressed interest in boosting this liability.
Various Illinois Legislature members worked last year to try and relax some of the law’s severity, without much luck.
“Biometrics are unlike other unique identifiers that are used to access finances or other sensitive information,” said a bill summary released in the Illinois Legislature in 2021. “For example, social security numbers, when compromised, can be changed. Biometrics, however, are biologically unique to the individual, therefore, once compromised, the individual has no recourse, is at heightened risk for identity theft, and is likely to withdraw from biometric-facilitated transactions.”
Any violation of the law can allow an “aggrieved” individual to obtain liquidated damages totaling $1,000 for each negligent violation and $5,000 for any reckless violation. For a trucking company that has been scanning employees in various manners for a number of years, these damages can add up significantly.
“This is a really big issue right now in Illinois–not just for trucking, but across industries,” said firm partner Chip Andrewscavage. “BIPA has been dormant for a long time, but in the past few years, there have been literally hundreds–if not thousands–of cases filed. The risk is very high to go to trial, so we’ve been seeing a lot of class cases settled outside [of] court.”
Some trucking companies are beginning to panic, many state industry experts say.
“I am hearing from my members about this,” said Illinois Trucking Association executive director, Matt Hart. “I even had one member who reached out to me who literally told me this lawsuit will result in his filing for bankruptcy and moving his company out of Illinois.”
Hart also noted that the Illinois Chamber of Commerce has been working with trucking companies to avoid such large lawsuits, and he has been trying to help.
“While the intentions of the law were to protect privacy, trucking companies are becoming aware of it, but are attempting to adapt to it a little too late,” said Hart. “Now, they’re facing lawsuits because they did not gain consent from their employees.”
Trucking companies should begin working alongside their individual technology suppliers in regards to compliance of this law, although they should have already been doing so to begin with, noted Trucksafe Consulting president, Brandon Wiseman. Trucksafe Consulting, based in Greenfield, Indiana, is a truck regulatory compliance firm.
“Work with your vendor, and see what your vendor is doing about this,” Wiseman said, adding that the carrier and tech vendor should both have data stored properly within their own systems. “I think it’s certainly possible for motor carriers to get pulled into the litigation.”
Some carriers are frustrated, saying that they should not be punished if they had no knowledge of the legislation in place.
“I get the intent of the law,” said a Midwestern carrier’s president who wished to remain anonymous. “But we didn’t do anything wrong. We just didn’t know the law existed.”
Still, many Illinois carriers have been using handprint and fingerprint scanners or inward-facing cameras for a number of years now, and should be doing so as responsibly as possible, Wiseman added.
“The law does not prohibit carriers from collecting data,” he said. “It requires carriers to make it clear to their drivers what exactly [they’re] collecting, and get their consent to do so.”