USA – ILLINOIS Trends and Developments Contributed by: Paul Yovanic, Jason Priebe, Ada Dolph and Michael Jacobsen, Seyfarth Shaw LLP
Illinois continues to stand at the forefront of US pri - vacy law, and 2026 is shaping up to be one of its most consequential years yet. Following a period marked by rapidly expanding litigation under the Illinois Biom - etric Information Privacy Act (BIPA), the resurgence of the Illinois Genetic Information Privacy Act (GIPA) and new AI‑focused regulation affecting employers state- wide, courts and regulators are poised to address sev - eral foundational questions that will define the future of privacy compliance and risk in the state. With key appellate decisions pending, courts deepening their divisions and newly enacted AI obligations introduc - ing sweeping operational challenges, Illinois remains a critical – and increasingly complex – jurisdiction for organisations navigating biometric, genetic and auto - mated decision‑making rules. This article explores the pivotal developments shaping that landscape and the implications for businesses operating in or connected to Illinois. The Illinois Biometric Information Privacy Act (BIPA, 740 ILCS 14/ et seq) Enacted in 2008, BIPA has long regulated the col - lection, use and handling of biometric identifiers and information by private entities, but for years it attract - ed relatively little litigation. That changed dramati - cally after the Illinois Supreme Court’s 2019 decision in Rosenbach v Six Flags Entertainment Corporation , which held that plaintiffs need not allege actual harm to pursue statutory damages under BIPA. In the wake of Rosenbach , filings surged – now exceeding 1,500 cases – and courts at every level have been pressed to address foundational questions about the scope and operation of the statute. In the authors’ 2025 Trends and Developments update, they highlighted three issues that were rising to the forefront at that time: • the applicability of BIPA’s healthcare exemption to employee time‑clock scans; • the reach of the state‑contractor exemption under BIPA; and • whether the 2024 amendment limiting damages to a single recovery applies retroactively to cases that were pending when the amendment took effect.
Going into 2026, there has been significant movement with respect to the state-contractor exemption and the retroactivity of the statutory damages amendment – both in state court and in federal court – setting the stage for pivotal developments on both of these fronts. State-contractor exemption BIPA contains an often‑overlooked provision exempt - ing any “contractor, subcontractor, or agent of a State agency or local unit of government when working for that State agency or local unit of government”. His - torically, the only Illinois appellate decision interpret - ing that language has been Enriquez v Navy Pier, Inc , where the First District established a three‑part frame - work for applying the exemption: the entity seeking to avail itself of the exemption must have been a con - tractor, of a governmental unit, and working for that governmental unit at the time of the alleged biometric collection. Focusing on the ordinary meaning of the statutory text, the court held that the defendant in Enriquez fit comfortably within the exemption because it was performing services under a contract with a unit of government. Despite the appellate court’s straightforward approach in Enriquez , trial courts have continued to diverge in their approaches. Some – most notably in Miran- da v Pexco, LLC – have adopted a strictly tempo - ral view consistent with the court’s plain reading in Enriquez , ruling that the exemption applies so long as the defendant held a government contract during the period that the plaintiff worked for the defendant, regardless of whether the biometric collection related to the governmental work. Other courts have expand - ed the inquiry, requiring discovery into the scope of the contract, the revenue derived from it, or the degree to which the alleged biometric collection was tied to governmental responsibilities, often deferring any rul - ing until summary judgment. As a result, the exemp - tion continues to be one of the most inconsistently applied features of the statute. Further important developments are expected in 2026. In January, the Third District heard oral argu - ments in a case that is expected to provide the first ruling on the exemption from an Illinois appellate court since Enriquez . Although the discussion in this
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