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Anne Mayette

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Anne concentrates her practice on matters involving business and commercial litigation, with a specific focus on commercial lease disputes and employment law. She has significant experience with employment law, including unpaid wages, minimum wage and overtime violations, FMLA, ERISA, employment contracts, breach of contract, shareholder derivative actions, and employment discrimination claims under Title VII, ADEA and ADA.

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On January 28, 2021, privacy professionals around the world will celebrate Data Privacy Day. This year, we decided to mark the occasion by gathering our team’s thoughts and expectations on what we expect to be the biggest privacy law stories in 2021 and beyond.

Last year we wrote a similar article, attempting to predict how the privacy landscape would unfold in 2020. We got some things right (e.g., the emergence of CCPA 2.0). But, let’s be honest, in March everything changed, including privacy law. As spring turned into summer our writing focused on the privacy law implications of COVID-19, including contact tracing, no contact temperature taking, and the unanticipated collection of heath information, among other unexpected topics. We also took note of developments overseas, including the Court of Justice of the European Union’s Schrems II decision and the emergence of Brazil’s federal privacy law, LGPD.

If there was one takeaway from 2020 from a privacy law perspective it was this – while it is impossible to predict its path, privacy law is rapidly growing and evolving, almost on a daily basis, and in nearly every corner of the world. With that, we turn to our 2021 predictions.

Conceptual image about how a laptop computer with internet open a virtual door to worldwide information sharing.Keypoint: 2020 promises to be another ground-breaking year in privacy and cybersecurity law in the United States.

2019 was an exciting year in privacy and cybersecurity law. In the United States, the California Consumer Privacy Act (CCPA) was the most significant story, but there also were developments in states such as New York and Nevada. Numerous other states also considered consumer privacy legislation, and federal lawmakers even jumped into the fray, proposing a variety of bills and regulations. Overseas, GDPR garnered the most headlines of course, but other countries, such as Brazil, also made news.

But 2019 was just the start. There is no doubt that privacy and cybersecurity law is undergoing a fundamental change in the United States. If nothing else, the legal landscape of privacy law in the United States promises to look very different by the end of the year.

Below we discuss what we anticipate will be the biggest stories in 2020 and beyond.

Key Points

  • The Illinois Biometric Information Privacy Act (BIPA) is the most stringent privacy law in the country providing claimants with a private right of action without alleging actual injury.
  • Recent decisions have held that companies outside of Illinois that collect, store or use information on employees and persons in Illinois are subject to BIPA mandates.
  • Courts have held that notice of the collection of biometric information must be obtained from all persons prior to collection of the biometric information.
  • A recent decision acknowledged that an expansive reading of the statute suggests that each scan of biometric information may constitute a single violation under the BIPA.
  • Union employees subject to a collective bargaining agreement must pursue their BIPA claims in arbitration or before an administrative board.
  • Claims of willful or intentional violation of the new law must be supported by facts.
  • BIPA contains no statute of limitations for actions brought under the law, and the issue of the applicable length of the statute of limitations remains unresolved.

As tech companies race to develop facial recognition software for new applications across industry sectors, including the automotive, cosmetic, and healthcare industries, state legislatures are developing privacy laws to protect individuals’ right to privacy and control over their biometric information. The Illinois BIPA is the most stringent biometric privacy law in the U.S for the following reasons:

Key Point: The Illinois data breach notification statute will now require entities to notify the Illinois Attorney General if a breach affects 500 or more Illinois residents.

The Illinois General Assembly recently voted to approve an amendment to the state’s Personal Information Protection Act (“PIPA”) (815 ILCS 530/1 et seq.) with regards to companies’ and organizations’ obligations when a data breach occurs. Illinois Governor J.B. Pritzker is expected to sign the amendment into law.