Mary Smigielski and Kenneth Walsh Publish Bloomberg Law Insights Article on Potential Nationwide Implications of BIPA During the COVID-19 Pandemic

Chicago, Ill. (April 24, 2020) - Chicago Partner Mary Smigielski and Associate Kenneth D. Walsh recently published a Bloomberg Law Insights article titled “Illinois Biometric Privacy Law Has Nationwide Potential in Pandemic.” The article discusses the potential nationwide implications of the Illinois Biometric Information Privacy Act’s (BIPA) requirements, for both schools that are using remote learning tools and employers that are tracking employees during the COVID-19 pandemic.

In their article, Mr. Walsh and Ms. Smigielski set the stage by describing how schools and employers are currently using e-learning solutions and facial recognition technology, respectively, in their daily operations. Against this backdrop, the authors provide a brief explanation of BIPA, noting that the law prevents private entities from collecting, storing, or using biometric identifiers or information without providing prior notice and obtaining consent from the subject. Mr. Walsh and Ms. Smigielski also point out that damages in BIPA cases can be substantial because the law provides for “hefty” penalties.

To illustrate how BIPA applies in remote learning contexts and how the Illinois law has impacted nationwide litigation, Mr. Walsh and Ms. Smigielski describe a California case in which students have alleged that Google violated both BIPA and the federal Children’s Online Privacy Protections Act (COPPA) through the unauthorized use of “personally identifying biometric data of millions of school children throughout the country.” In this matter, H.K. et al. v. Google LLC (April 2, 2020), the plaintiffs’ claims involve Google’s “G Suite for Education,” a platform that several school systems are currently using for remote learning purposes.

Similarly, Mr. Walsh and Ms. Smigielski explain how employers are using biometric technology during the pandemic for the purpose of protecting employees from surface contact. These businesses are employing facial recognition technology to provide contactless methods for employee timekeeping and to grant employees access to company facilities. Mr. Walsh and Ms. Smigielski advise that prior to taking any action that involves biometric identifiers, “employers should ensure that they are in compliance with BIPA to avoid the sizable potential statutory damages that BIPA provides.”

The authors conclude their article with a message regarding the extraterritorial impact of BIPA. They state, “Awareness of the requirements of BIPA is critical for any company with operations in or with a connection to Illinois, particularly as the need for remote work and e-learning persists and employers and schools are presented with unprecedented challenges amidst the continually developing COVID-19 crisis.” 

Ms. Smigielski serves as the co-chair of Lewis Brisbois’ Illinois Biometric Information Privacy Act (BIPA) Practice and a member of the firm’s Labor & Employment Practice. She has been on the cutting-edge of the defense of class action litigation brought against employers and others under BIPA. Ms. Smigielski works closely with national insurance carriers and private clients for defense, compliance, and mitigation of risk related to BIPA.

Mr. Walsh is a member of Lewis Brisbois’ Labor & Employment Practice. He focuses his practice on representing employers in a variety of labor and employment matters, including wage and hour claims, employment discrimination claims, and claims arising under BIPA.

You can read the full Insights article here. This article was also referenced in a post from BiometricUpdate.com.