The Illinois Biometric Information Privacy Act (“BIPA”), 740 ILCS 14/1 et. seq., is one of the most hotly litigated privacy statutes in the country. As it stands, there is no clear appellate authority on BIPA’s reach in at least one critical aspect. Namely, whether BIPA applies to data that cannot identify a person. District courts are currently split on this issue, with some courts concluding that BIPA applies even in instances where an incidental “scan” of someone’s face is incapable of identifying the person whose face is scanned. If appellate courts uphold that conclusion, BIPA could effectively outlaw biometric-identification technology. Such an outcome is contrary to the plain language of the statute and makes little legal or policy sense.
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