Navigating BIPA Compliance in Digital Forensics and eDiscovery

It is no secret we live in a data-driven world, where the lines between security, privacy, and evidence handling are increasingly blurred. With 25 years of experience in digital forensics and eDiscovery, Capsicum Group understands the growing importance of data privacy laws, especially the newly evolving Biometric Information Privacy Act (BIPA). This law has major implications for our industry, and we are here to help our clients manage compliance and reduce risk.

Understanding BIPA and Its Impact

BIPA, originally passed in Illinois, sets strict rules for collecting, storing, and using biometric data like fingerprints, facial scans, and voiceprints. Recent court decisions have defined biometric data as derived from photographs, such as facial or hand geometry scans. This information is considered a biometric identifier under BIPA if it can identify an individual. If a forensic examiner's techniques can pinpoint particular people, the data may be subject to BIPA.

Unlike many data privacy statutes, BIPA imposes strict requirements on entities that collect biometric data, including:  

• Receiving informed consent, now allowing electronic signatures as of 2024.   This suggests that examining images for biometric information without consent could potentially violate BIPA.
• Using secure methods to handle biometric data.
• Setting clear policies for data retention and destruction.

For digital forensics and eDiscovery professionals, BIPA presents both challenges and opportunities:

• Evidence Handling – Investigations may include biometric data, requiring careful management to avoid legal risks. 
• Chain-of-Custody – Proper documentation and secure storage of biometric data are critical.
• Client Liability – Recent legal updates have clarified who is responsible under BIPA .

Key Steps for BIPA Compliance

To stay compliant with BIPA, consider these best practices:

• Audit Your Data – Identify any biometric data in your systems.
• Develop Clear Policies – Create and share guidelines for collecting, storing, and deleting biometric data.
• Strengthen Security – Use encryption, access controls, and regular security checks.
• Train Your Team – Stay updated on the latest biometric technology and privacy laws.
• Consult Legal Experts – Work with legal counsel to ensure compliance.
• Manage Vendors Carefully – Make sure third-party vendors follow BIPA rules.

How we can help:

As digital forensic specialists, we can help clients by:

• Identifying and securing biometric data in digital evidence files and databases that may contain biometric identifiers, such as fingerprint images, facial recognition data or iris scans. 
• Ensuring thorough chain-of-custody documentation to ensue admissibility in court.
• Advising on best practices to reduce legal and financial risks with focus on encrypted storage, access controls, retention, data management policies, proper consent and training. 
• Data mapping and vendor compliance

Looking Ahead

BIPA is like a movie script that has been written, but the scenes are still being filmed, the plot is set, but the final details and interpretation are still unfolding in court. BIPA’s impact goes beyond Illinois, affecting industries and companies that use biometric data worldwide. Staying informed and proactive not only helps meet legal requirements and investigative needs, but also strengthens security and builds trust.
Capsicum Group is well-equipped to guide you through these challenges, helping you stay ahead in technology, data privacy and biometric information compliance.