Mary Smigielski Speaks with Cybersecurity Law Report About Avoiding BIPA Liability

Chicago, Ill. (September 16, 2022) - Chicago Partner Mary A. Smigielski recently spoke with the Cybersecurity Law Report (CSLR) for an article titled, “Shaping the BIPA Landscape: Avoiding Liability.” The article, which is the second of a two-part series, details practical steps that companies can take to avoid liability under the Illinois Biometric Information Privacy Act (BIPA). Ms. Smigielski previously provided comments to CSLR for the first article in this series, which outlined recent developments in BIPA-related litigation.

As part two of the series explains, there are several outstanding questions regarding liability under BIPA. Ms. Smigielski advised that in light of the high volume of litigation and uncertainty, companies should consider refraining from using biometric information. For companies that proceed with collecting this data, however, Ms. Smigielski recommended that they create a meaningful biometric policy that either is included in a general privacy policy, or is a standalone policy. She added that the employee should be held responsible for reading and agreeing to the biometric privacy policy – ideally during the onboarding process – and predicted that the issue of responsibility will continue to be litigated.

Finally, Ms. Smigielski discussed how companies should consider biometric laws in states outside of Illinois. Regardless of their location, however, Ms. Smigielski advised that companies “should come up with a policy that governs it and ensure that it has a writing in place that talks about what it is doing with information that somebody down the line might claim is biometric.”

Ms. Smigielski is the co-chair of Lewis Brisbois' BIPA Practice, the first in the nation, and head of the firm's Chicago Labor & Employment team. She has been on the cutting edge of BIPA litigation, frequently providing commentary to legal news outlets on the topic and co-authoring an Insight article for Bloomberg Law on the potential nationwide implications of BIPA during the COVID-19 pandemic. Along with her BIPA work, Ms. Smigielski's practice involves class/collective actions and single-plaintiff employment litigation, administrative charges, nationwide counseling, training, and sensitive workplace investigations, including at the C-Suite level.

Read the full CSLR article here (subscription may be required). Read part one of the series, titled “Shaping the BIPA Landscape: Notable Trends and Developments,” here. Learn more about our Illinois BIPA Practice here.

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