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It is 60 degrees, baseball is going to allow fans in the stadiums, March Madness is almost upon us and several thousand goofy pieces of legislation have been introduced in the Illinois General Assembly. Things are finally starting to feel like normal around here...
Committee Updates
The House Cybersecurity, Data Analytics and IT Committee met this morning at 10 am. The sole bill was HB 53 (Andrade) Which p rovides that employers that rely solely upon artificial intelligence to determine whether an applicant will qualify for an in-person interview must gather and report certain demographic information to the Department of Commerce and Economic Opportunity. However, no bills were called in committee. Instead, Members of the committee introduced themselves and explained their connection to IT and cybersecurity.
BIPA Bills in Committee Next Week!
The House Judiciary Committee has posted Leader Durkin's HB 559 and HB 560 next Tuesday at 3. These bills are initiatives of the Illinois Chamber. Leader Durkin plans to call HB 559. We encourage each of you to file a witness slip in favor of this legislation.
National Privacy Update The US Chamber's privacy expert, Jordan Crenshaw, lets us know that "Governor Northam has signed the Virginia Consumer Data Protection Act into law. The bill in many ways mirrors the original Washington State model, with access, correction, deletion, portability, as well as opt-out and sensitive data opt-in rights to be enforced solely by the state AG. A working group is to be established to make recommendations by November 2021. The law goes into effect in 2023." Notably, there is no private right of action in this legislation. As privacy legislation is introduced here in Illinois, we encourage legislators to look to Virginia for inspiration. New Bills of Interest Now that the filing deadline has come and gone, this should be the last batch of newly introduced bills of interest. However, there are plenty of shell bills out there which can be amended with new language that we will continue to monitor for you. As always, I very much appreciate your input on these bills.
BIPA SB 1607 (Cunningham) - Amends the Biometric Information Privacy Act. Defines "security purpose". Changes the definition of "written release" to include electronic consent and electronic release. Provides that the Attorney General and State's Attorneys have the sole authority to enforce the Act. Provides that an action may be brought to enforce the Act only if a violation of the Act causes actual harm. Provides that an employer is exempt under the Act if the employer collects, captures, obtains, or otherwise uses biometric identifiers and biometric information for: (1) keeping record of an employee's work hours; (2) a security purpose; (3) facility access; or (4) use by the human resource department or human resource employees of the employer. Provides that an employer is exempt under the Act if the employer retains the biometric identifier or information no longer than is reasonably necessary to satisfy a security purpose. This is notable as it was introduced by the Senate Democratic leadership.
SB 2039 (Wilcox) -Repeals the Biometric Information Privacy Act. Effective immediately.
Broadband: SB 1557 (Villanueva) - Amends the Public Utilities Act. Replaces provisions relating to the Universal Telephone Service Assistance Program with provisions that require the Illinois Commerce Commission to establish a Universal Broadband Service Assistance Program. Provides that the Program shall provide for a reduction of monthly charges, a reduction of installation charges, devices used in connection to the Internet, or any other alternative assistance or program to increase accessibility to broadband service and broadband Internet access service that the Commission deems advisable subject to the availability of funds for the program. Makes other conforming changes. Creates a similar program for low-income residential customers of cable and video service providers. Extends the repeal of the Telecommunications and Cable and Video Competition Articles from December 31, 2021 to December 31, 2022. SB 1564 (Villanueva) - Amends the Public Utilities Act. Provides that the holder of a State-issued authorization shall not impose data caps on broadband service provided to households. Provides that "data caps" means a limit on the amount of bits or the speed at which a user of broadband service may upload or download bits during a period of time.
Data Centers SB 2182 (Sims)- Amends Department of Commerce and Economic Opportunity Law of the Civil Administrative Code of Illinois. Makes changes concerning data center investment. Modifies the criteria for determining qualifying Illinois data centers. Provides that the Department of Commerce and Economic Opportunity and any tenant of a qualifying data center seeking a specified exemption for new or existing facilities must enter into a memorandum of understanding. Defines "tenant". Effective immediately. The IL Chamber helped with the drafting of this bill.
Independent Contractors: SB 1569 (Martwick) Creates the Independent Contractor Payment Protection Act and amends the State Finance Act. Provides that the agreed work terms between an independent contractor and a client shall be: (1) reduced to writing; (2) sufficiently detailed in describing how compensation earned and payable shall be calculated; (3) signed by the independent contractor; (4) signed by the client; and (5) kept on file by the client for a period of not less than 6 years. Provides that an independent contractor shall be paid the compensation earned in accordance with the agreed work terms not later than the last day of the month following the month in which the compensation is earned. Provides that an independent contractor may file a complaint with the Department of Labor alleging a violation of the Act. Provides for enforcement of the Act by the Department. Establishes civil and criminal penalties.
Miscellaneous SB 1693 (Bennett) - Creates the Illinois Industrial Biotechnology Partnership Act. Establishes the Industrial Biotechnology Public-Private Partnership as a State-sponsored board consisting of specified members to promote and market Illinois as a destination for research, development, and commercialization for industrial biotechnology.
SB 1773(Belt) - Amends the Department of Commerce and Economic Opportunity Law of the Civil Administrative Code of Illinois. Creates the Innovation, Automation, and Structural Pilot Program to be implemented and administered by the Department of Commerce and Economic Opportunity. Specifies the purpose of the Program. Provides Program qualification requirements. Provides Program certification requirements. Provides for the adoption of rules. Specifies the duration of the Program. Repeals provisions on January 1, 2029. Effective immediately. SB 2001(Villivalam) - Amends the Electronic Commerce Security Act. Provides that every State agency shall accept electronic signatures where a rule of law requires a signature, except when all parties waive the right to use electronic signatures. Provides that if any other statute or rule requires approval by a State agency prior to the use or retention of electronic records or the use of electronic signatures, the provisions of this Act shall control. SB 2176 (Sims) - Creates the Uniform Electronic Transactions Act. Provides that a contract, record, of signature may not be denied legal effect or enforceability simply because it is in electronic form or an electronic record was used in its formation. Provides that if a law requires a record to be in writing, an electronic record satisfies the law. Provides that if a law requires a signature, an electronic signature satisfies the law. Repeals the Electronic Commerce Security Act. Makes corresponding changes in various laws to conform cross references. Effective immediately.
SB 2290 (Bennett) - Amends the Department of Commerce and Economic Opportunity Law of the Civil Administrative Code of Illinois. Provides that the Department of Commerce and Economic Opportunity is authorized to establish the Illinois Innovation Voucher Program for the purpose of fostering research and development in key industry clusters leading to the creation of new products and services that can be marketed by Illinois businesses. Provides that the Department may award innovation vouchers to eligible businesses to offset a portion of expenses incurred through a collaborative research engagement with an Illinois institution of higher education. Provides for the award of matching funds in the form of innovation vouchers. Provides eligibility requirements for receiving innovation vouchers. Provides requirements for administering the Program. Provides for the adoption of rules. Effective immediately.
SB 2311 (Feigenholtz) - Amends the Consumer Fraud and Deceptive Business Practices Act. Provides for the regulation of payments for software applications and purchases. Prohibits a proprietor of a digital application distribution platform from requiring a developer to use an in-application payment system as the exclusive mode of accepting payment from a user to download a software application or purchase a digital or physical product. Prohibits retaliation against a developer that chooses alternative application stores or payment systems. Defines terms. Privacy SB 1578 (Martwick) - Amends the Student Online Personal Protection Act. Provides than an operator shall not knowingly sell, rent, lease, or trade a student's information (rather than knowingly sell or rent a student's information). Regarding an operator's request to receive covered information from a school, a school district, or the State Board of Education, provides that the written agreement related thereto must require the operator to provide a parent with a means to view and to request edits to the covered information to be maintained by the operator. If a breach occurs and is attributed to the operator, provides that any investigation and remediation costs and expenses incurred by the school as a result of the breach shall be borne by the operator (rather than the costs and expenses shall be allocated between the operator and the school). Removes local school council members as individuals who are authorized to share, transfer, disclose, or provide access to a student's covered information without a written agreement. Requires the State Board of Education to develop and make available model student data privacy policies and procedures as soon as practical after July 1, 2021 SB 1594 (Castro) - Creates the Protecting Household Privacy Act. Provides that a law enforcement agency shall not obtain household electronic data or direct the acquisition of household electronic data from a private party or other third party. Provides exceptions. Provides that if a law enforcement agency obtains household electronic data under the Act, the agency within 30 days shall destroy all information obtained, except that a supervisor at that agency may retain particular information if: (1) there is reasonable suspicion that the information contains evidence of criminal activity; or (2) the owner of the household electronic device consents to voluntarily provide the desired household electronic data. Provides that if the court finds by a preponderance of the evidence that a law enforcement agency obtained household electronic data pertaining to a person or his or her effects in violation of the Act, then the information shall be presumed to be inadmissible in any judicial or administrative proceeding. Provides that any person or entity that provides household electronic data in response to a request from any law enforcement agency under the Act shall take reasonable measures to ensure the confidentiality, integrity, and security of any household electronic data provided to any law enforcement agency, and to limit any production of household electronic data to information relevant to the law enforcement agency request. Provides that if a manufacturer of a household electronic device discloses household electronic data to any third party, the manufacturer shall make the following information available on a clear and conspicuous notice on the manufacturer's Internet website: (1) all categories of household electronic data disclosed to third parties; and (2) the names of all third parties that receive household electronic data. SB 2080 - Creates the Automatic Listening Exploitation Act. Defines terms. Provides that it is unlawful for a person who provides any smart service through a proprietary smart speaker to: (i) store or make a recording or transcript of any speech or sound captured by a smart speaker or to use any storage or recording or transcript of any voice interaction by a user with the voice-user interface, or (ii) transmit such a recording or transcript to a third party, for any purpose, without obtaining express informed consent and permitting the user to require the deletion of any recording, transcript, or sound recorded by the speaker at any time. Provides exemptions. Provides that it is unlawful for a person who provides any security monitoring or other service through a proprietary video doorbell to: (i) store or make a recording of any video, image, or audio captured by the video doorbell's camera, or (ii) use any storage recording of any video, image, or audio captured by the video doorbell's camera, or transmit such a recording to a third party. Provides exemptions. Provides that, if the Attorney General or a State's Attorney has reason to believe that any person has violated or is violating the Act, he or she may, in addition to any authority he or she may have to bring an action in State court under consumer protection law, bring a civil action in any court of competent jurisdiction to enjoin further violation by the defendant, enforce compliance with the Act, or obtain civil penalties not to exceed $40,000 per violation. SB 2081 Creates the Keep the Internet Devices Safe Act. Provides that a "digital device" is an Internet-connected device that contains a microphone. Provides that no private entity may turn on or enable a digital device's microphone unless the registered owner or person (instead of user of the device) configuring the device is provided certain notices in a consumer agreement (instead of a written policy). Provides that a manufacturer of a digital device that does not cause to be turned on or otherwise use a digital device's microphone is not subject to the restrictions on the use of a digital device's microphone. Provides that the exclusive authority to enforce the Act is vested in the Attorney General. SB 2082 Creates the Keep Internet Devices Safe Act. Includes a statement of legislative intent and defines terms. Provides that a private entity may turn on or enable, cause to be turned on or enabled, or otherwise use a digital device's microphone to listen for or collect information, including spoken words or other audible or inaudible sounds, if the private entity makes specified disclosures in its customer agreement or other incorporated addendum. Provides that a private entity that collects, stores, or transmits any information collected through a digital device's microphone concerning an Illinois resident shall implement and maintain reasonable security measures to protect that information from unauthorized access, acquisition, destruction, use, modification, and disclosure. Adds provisions governing waiver, applicability, and exceptions. Provides that a violation of the Keep Internet Devices Safe Act constitutes an unlawful practice under the Consumer Fraud and Deceptive Business Practices Act. Small Wireless Facilities SB 1731 (Jones-Rezin) - Amends the Small Wireless Facilities Deployment Act. Provides that the Act is repealed on December 31, 2026 (currently, June 1, 2021). Effective immediately. SB 2229 (Turner, D.) - Amends the Illinois Procurement Code. Provides that the Code does not apply to the leasing of State-owned facilities by a wireless carrier. Amends the Illinois Income Tax Act. Creates credit for the cost of equipment and materials used in the business of providing broadband services in Illinois. Provides that the credit does not apply to equipment and materials placed in service after December 31, 2024. Amends the Use Tax Act, the Service Use Tax Act, the Service Occupation Tax Act, and the Retailers' Occupation Tax Act to exempt equipment and materials used to provide broadband services in Illinois from taxation under the Acts. Defines terms. Effective immediately. Transportation Network Providers Act SB 2183 (Sims) If and only if House Bill 156 of the 101st General Assembly becomes law, amends the Transportation Network Providers Act. Repeals the Act on January 1, 2027 (instead of June 1, 2021). Effective immediately.
HB 118 (Guzzardi) UpdateJay Shattuck, Executive Director of the Chamber's Employment Law Council, provides the following update on HB 118:
"The House Labor Committee on a partisan 17-11 roll call moved HB 118, sponsored by Rep. Will Guzzardi (D-Chicago) to the House Floor. HB 118 increases the 2% monthly interest penalty under the Wage Payment & Collection Act to 5% per month (60% annually). This applies to any underpayment of wages, final compensation or wage supplements for each month following the date of payment during which the underpayment remains unpaid. This penalty applies to all claims, regardless of the legitimacy of the employer's dispute. So for each $1,000 being disputed and found as an underpayment by the Illinois Department of Labor or a court, the penalty for a legitimately disputed claim, the penalty goes from $240 per year to $600 per year. A civil action also requires recovery of costs and reasonable attorney's fees. As was testified during committee, a claim with the Department must be filed within one year and a civil action can be filed as much as 10 years from payment. Several Republican members of the Committee did an excellent job of pointing out the egregious level of 60% per annum for a legitimate dispute of a wage payment. Several of them who are attorneys raised general observations of problems of the bill, especially forcing employers to pay the alleged underpayment given the financial risk that a 60% annual penalty poses. However, none of them practice in this area of the law. I am concerned that this is a potential new BIPA-like area of litigation, given the class action potential that plaintiffs attorneys will realize with a 10 year statute of limitation, 60% per annum interest and recovery of costs and legal fees!" Articles of Interest |
