INTRODUCTION

Disputes between insurers and their policyholders relating to insurers’ coverage obligations in biometric privacy-related litigation are on the rise. Over the past year, insurers have commenced a number of declaratory judgment actions asserting that they have no duty to defend their policyholders in lawsuits alleging violations of biometric privacy statutes. A recent Supreme Court of Illinois decision, however, brings good news for policyholders, with the Northern District of Illinois largely following suit.

LITIGATION RELATING TO BIOMETRIC PRIVACY STATUTES

In 2008, Illinois enacted the Biometric Information Privacy Act (BIPA), which marked Illinois as unique in the protections provided for biometric information.¹ BIPA is intended to protect the privacy interests associated with an individual’s biometric information by regulating how businesses collect, use, and store biometric identifiers.² Illinois’s BIPA sets itself apart from privacy statutes enacted by other states in being the first state to create a private right of action that entitles individuals to seek statutory liquidated damages for violations of the statute.³

The interest of state legislatures in regulating the collection, use, and storage of biometric data remains strong. In the first quarter of 2022, seven state legislatures—in California,⁴ Kentucky,⁵ Maine,⁶ Maryland,⁷ Massachusetts,⁸ Missouri,⁹ and New York¹⁰ —introduced biometric privacy laws based on BIPA.

While the interest of state...

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