Can you scan IDs in Illinois?

Illinois law regulates a business’s practice of scanning driver’s licenses and imposes restrictions on the use of information obtained from a driver’s license whether by means of scanning or with the naked eye. 

There are some instances in which ID scanning is required, such as for cannabis purchase, or online purchase of tobacco and eCigarettes.

There are some instances in which merchants are required to record information related to identity, such as check cashing & foreign currency exchange. ID scanning can improve the ease and accuracy of record keeping in these scenarios.

Illinois has robust biometric privacy laws.

Overview of Illinois ID Scanning Laws & Regulations

Illinois appears to draw a distinction between obtaining of driver’s license information embedded in a bar code with a scanner and plainly displayed information with the naked eye.  Two separate statutes govern these scenarios as explained below.

Permissible use – information obtained from a ID scan

Illinois law prohibits anyone from possessing, using, or allowing to be used any hardware or software “specifically designed for or primarily used in the reading of encrypted language from the bar code or magnetic strip” of a driver’s license, except if required by applicable laws or if the encrypted information is obtained for the “detection or possible prosecution of criminal offenses or fraud.” 

This general prohibition is arguably limited to the reading of “encrypted” language; therefore, scanning the bar code for the limited purpose of reading any unencrypted language may or may not be subject to the prohibition.

As of May, 2013, the State of Illinois no longer encrypts the data embedded in the bar code.  As currently written, the statutory prohibition applies to the reading of “encrypted language”; therefore, the prohibition may no longer apply to any scanning, and further guidance from the State of Illinois may be necessary.     

Penalty:  A first-time violation of this prohibition constitutes a Class 4 felony and a second or subsequent violation a Class 3 felony. 

Permissible use – information obtained from an ID with the naked eye

Illinois law allows use of driver’s license information obtained with the naked eye under the following circumstances.

1. If the information is obtained to verify the individual’s age, only for that purpose.
2. If the information is obtained in the course of a commercial transaction, only for completing that transaction, which includes all subsequent payment, processing, collection, and other related actions.  Commercial solicitations and sale/lease/disclosure of the information to third parties are not deemed related actions. 
3. If the individual gives express permission for the use.
4. If the information is obtained from a source other than the individual’s driver’s license.
5. If the information is used by a government agency.
6. If the transfer of information to third parties is required by law.
7. If the transfer of information to third parties is for detection or possible prosecution of criminal offenses or fraud.
8. If the information is provided by the individual in the course of a potential or complete employment, or commercial/business/professional transaction for the purpose of completing written documents including contracts, purchase orders, retail installment contracts, repair orders, applications, disclosure forms, or waiver forms. 

Penalty:  Illinois law allows the individual whose driver’s license information has been used in violation of the law to bring an action to recover actual damages, but in no event less than $250 for each violation, plus attorney’s fees and costs. 

Does Illinois offer affirmative defense for ID scanning?

Illinois only makes reference of affirmative defense for ID scanning related to cannabis sales. There is no reference to affirmative defense for ID scanning for tobacco or alcohol sales.

Illinois Statute Sec. 6-117.1. Prohibited use of driver’s license information

1. When information is obtained from a driver’s license to identify or prove the age of the holder of the license, or in the course of a commercial transaction, that information may be used only for purposes of identification of the individual or for completing the commercial transaction in which the information was obtained, including all subsequent payment, processing, collection, and other related actions. Information obtained from a driver’s license may not be used for purposes unrelated to the transaction in which it was obtained, including, but not limited to, commercial solicitations. Information obtained from a driver’s license to identify the holder of the license, or in the course of a commercial transaction, may not be sold, leased, or otherwise provided to any third party.
2. Any individual whose driver’s license information has been used in violation of this Section has a cause of action against the person who violated this Section. Upon a finding that a violation did occur, the individual whose information was used in violation of this Section is entitled to recover actual damages, but not less than liquidated damages in the amount of $250 for each violation, plus attorney’s fees and the costs of bringing the action.
3. Use of information contained on a driver’s license is not a violation of this Section if
   1. the individual whose information has been used gave express permission for that use or
   2. the information relating to the individual was obtained from a source other than the individual’s driver’s license.
4. This Section does not apply to any agency of the United States, the State of Illinois, or any other state or political subdivision thereof.
5. This Section does not apply to the transfer of information to a third party if
   1. a federal or State law, rule, or regulation requires that the information be transferred to a third party after being recorded in specified transactions or
   2. the information is transferred to a third party for purposes of the detection or possible prosecution of criminal offenses or fraud.

If information is transferred to a third party under this subsection (e), it may be used only for the purposes authorized by this subsection (e).

1. This Section does not apply to the use of information obtained from a driver’s license which has been provided by the holder of the license in the course of a potential or completed employment, commercial, business or professional transaction for the purpose of completing written documents including, but not limited to, contracts, agreements, purchase orders, retail installment contracts, buyer’s orders, purchase contracts, repair orders, applications, disclosure forms or waiver forms.

Illinois Statute Sec. 6-301.2 Fraudulent driver’s license or permit

It is a violation of this Section for any person:

1. To knowingly possess any fraudulent driver’s license or permit;
2. To knowingly possess, display or cause to be displayed any fraudulent driver’s license or permit for the purpose of obtaining  any account, credit, credit card, or debit card from a bank, financial institution or retail mercantile establishment;
3. To knowingly possess any fraudulent driver’s license or permit with the intent to commit a theft, deception or credit or debit card fraud in violation of any law of this State or any law of any other jurisdiction;
4. To knowingly possess any fraudulent driver’s license or permit with the intent to commit any other violation of any laws of this State or any law of any other jurisdiction for which a sentence to a term of imprisonment in a penitentiary for one year or more is provided;
5. To knowingly possess any fraudulent driver’s license or permit while in unauthorized possession of any document, instrument or device capable of defrauding another;
6. To knowingly possess any fraudulent driver’s license or permit with the intent to use the license or permit to acquire any other identification document;
7. To knowingly possess without authority any driver’s license-making or permit-making implement;
8. To knowingly possess any stolen driver’s license-making or permit-making implement or to possess, use, or allow to be used any materials, hardware, or software specifically designed for or primarily used in the manufacture, assembly, issuance, or authentication of an official driver’s license or permit issued by the Secretary of State.
9. To knowingly duplicate, manufacture, sell or transfer any fraudulent driver’s license or permit;
10. To advertise or distribute any information or materials that  promote the selling, giving, or furnishing of a fraudulent driver’s license or permit;
11. To knowingly use any fraudulent driver’s license or permit to purchase or attempt to purchase any ticket for a common carrier or to board or attempt to board any common carrier.  As used in this Section, “common carrier” means any public or private provider of transportation, whether by land, air, or water;
12. To knowingly possess any fraudulent driver’s license or permit if the person has at the time a different driver’s license issued by the Secretary of State or another official driver’s license agency in another jurisdiction that is suspended or revoked.

It is a violation of this Section for any person to possess, use, or allow to be used any materials, hardware, or software specifically designed for or primarily used in the reading of encrypted language from the bar code or magnetic stripe of an official Illinois driver’s license issued by the Secretary of State.  This subsection (b-1) does not apply if a federal or State law, rule, or regulation requires that the card holder’s address be recorded in specified transactions or if the encrypted information is obtained for the detection or the possible prosecution of criminal offenses or fraud.  If the address information is obtained under this subsection (b-1), it may be used only for the purposes authorized by this subsection (b-1).

(c.) Sentence.

      1.) Any person convicted of a violation of paragraph 1 of subsection (b) of this Section shall be guilty of a class 4 felony and shall be sentenced to a minimum fine of $500 or 50 hours of community service, preferably at an alcohol abuse prevention program if available.

      2.) Any person convicted of a violation of any of paragraphs 2 through 9 or paragraph 11 or 12 of subsection (b) of this Section or a violation of subsection (b-1) of this Section shall be guilty of a Class 4 felony.  A person convicted of a second or subsequent violation shall be guilty of a Class 3 felony.

      3.) Any person convicted of a violation of paragraph 10 of subsection (b) of this Section shall be guilty of a Class B misdemeanor.

(d.) This section does not prohibit any lawfully authorized investigative, protective, law enforcement or other activity of any agency of the United States, State of Illinois or any other state or political subdivision thereof.

(e.) The Secretary may request the Attorney General to seek a restraining order in the circuit court against any person who violates this Section by advertising fraudulent driver’s licenses or permits.

Illinois Statute Sec. 14. Unlawful use of identification card

(a) It is a violation of this Section for any person:

1. To possess, display, or cause to be displayed any cancelled or revoked identification card;
2. To display or represent as the person’s own any identification card issued to another;
3. To allow any unlawful use of an identification card issued to the person;
4. To lend an identification card to another or knowingly allow the use thereof by another;
5. To fail or refuse to surrender to the Secretary of State, the Secretary’s agent or any peace officer upon lawful demand, any identification card which has been revoked or cancelled;
6. To possess, use, or allow to be used any materials, hardware, or software specifically designed for or primarily used in the manufacture, assembly, issuance, or authentication of an official Illinois Identification Card or Illinois Person with a Disability Identification Card issued by the Secretary of State; or
7. To knowingly possess, use, or allow to be used a stolen identification card making implement.

    (a-1) It is a violation of this Section for any person to possess, use, or allow to be used any materials, hardware, or software specifically designed for or primarily used in the reading of encrypted language from the bar code or magnetic strip of an official Illinois Identification Card or Illinois Person with a Disability Identification Card issued by the Secretary of State. This subsection (a-1) does not apply if a federal or State law, rule, or regulation requires that the card holder’s address be recorded in specified transactions or if the encrypted information is obtained for the detection or possible prosecution of criminal offenses or fraud. If the address information is obtained under this subsection (a-1), it may be used only for the purposes authorized by this subsection (a-1).

    (a-5) As used in this Section “identification card” means any document made or issued by or under the authority of the United States Government, the State of Illinois or any other State or political subdivision thereof, or any governmental or quasi-governmental organization that, when completed with information concerning the individual, is of a type intended or commonly accepted for the purpose of identifying the individual.

    (b) Sentence.

        1. Any person convicted of a violation of this Section shall be guilty of a Class A misdemeanor and shall be sentenced to a minimum fine of $500 or 50 hours of community service, preferably at an alcohol abuse prevention program, if available.

        2. A person convicted of a second or subsequent violation of this Section shall be guilty of a Class 4 felony.

    (c) This Section does not prohibit any lawfully authorized investigative, protective, law enforcement or other activity of any agency of the United States, State of Illinois or any other state or political subdivision thereof.

(Source: P.A. 97-1064, eff. 1-1-13.)

Illinois Liquor Control Act

(b) If a licensee or his or her agents or employees believes or has reason to believe that a sale or delivery of any alcoholic liquor is prohibited because of the non-age of the prospective recipient, he or she shall, before making such sale or delivery demand presentation of some form of positive identification, containing proof of age, issued by a public officer in the performance of his or her official duties.
(c) No person shall transfer, alter, or deface such an identification card; use the identification card of another; carry or use a false or forged identification card; or obtain an identification card by means of false information.
(d) No person shall purchase, accept delivery or have possession of alcoholic liquor in violation of this Section.

Illinois Statute 720 ILCS 675. Prevention of Tobacco Use by Persons Under 21.

(a-5.1) Before selling, offering for sale, giving, or furnishing a tobacco product, electronic cigarette, or alternative nicotine product to another person, the person selling, offering for sale, giving, or furnishing the tobacco product, electronic cigarette, or alternative nicotine product shall verify that the person is at least 21 years of age by:
(1) examining from any person that appears to be under 30 years of age a government-issued photographic identification that establishes the person to be 21 years of age or older; or
(2) for sales of tobacco products, electronic cigarettes, or alternative nicotine products made through the Internet or other remote sales methods, performing an age verification through an independent, third party age verification service that compares information available from public records to the personal information entered by the person during the ordering process that establishes the person is 21 years of age or older.
(a-6) No person under 21 years of age in the furtherance or facilitation of obtaining any tobacco product, electronic cigarette, or alternative nicotine product shall display or use a false or forged identification card or transfer, alter, or deface an identification card.

(a-6) For the purpose of this Act, a training program that facilitates compliance with minimum-age tobacco laws must include at least the following elements: (i) it must explain that only individuals displaying valid identification demonstrating that they are 21 years of age or older shall be eligible to purchase tobacco products, electronic cigarettes, or alternative nicotine products and (ii) it must explain where a clerk can check identification for a date of birth. The training may be conducted electronically. Each retailer that has a training program shall require each employee who completes the training program to sign a form attesting that the employee has received and completed tobacco training. The form shall be kept in the employee’s file and may be used to provide proof of training.

Illinois Statute Sec. 10-20. ID Scanning For Cannabis Dispensaries

(a) To protect personal privacy, the Department of Financial and Professional Regulation shall not require a purchaser to provide a dispensing organization with personal information other than government-issued identification to determine the purchaser’s age, and a dispensing organization shall not obtain and record personal information about a purchaser without the purchaser’s consent. A dispensing organization shall use an electronic reader or electronic scanning device to scan a purchaser’s government-issued identification, if applicable, to determine the purchaser’s age and the validity of the identification. Any identifying or personal information of a purchaser obtained or received in accordance with this Section shall not be retained, used, shared or disclosed for any purpose except as authorized by this Act.
(b) A person who is under 21 years of age may not present or offer to a cannabis business establishment or the cannabis business establishment’s principal or employee any written or oral evidence of age that is false, fraudulent, or not actually the person’s own, for the purpose of:
(1) purchasing, attempting to purchase, or otherwise obtaining or attempting to obtain cannabis or any cannabis product; or
(2) gaining access to a cannabis business establishment.
(c) A violation of this Section is a Class A misdemeanor consistent with Section 6-20 of the Liquor Control Act of 1934.
(d) The Secretary of State may suspend or revoke the driving privileges of any person for a violation of this Section under Section 6-206 of the Illinois Vehicle Code and the rules adopted under it.
(e) No agent or employee of the licensee shall be disciplined or discharged for selling or furnishing cannabis or cannabis products to a person under 21 years of age if the agent or employee demanded and was shown, before furnishing cannabis or cannabis products to a person under 21 years of age, adequate written evidence of age and identity of the person. This subsection (e) does not apply if the agent or employee accepted the written evidence knowing it to be false or fraudulent. Adequate written evidence of age and identity of the person is a document issued by a federal, State, county, or municipal government, or subdivision or agency thereof, including, but not limited to, a motor vehicle operator’s license, a registration certificate issued under the Military Selective Service Act, or an identification card issued to a member of the Armed Forces. Proof that the licensee or his or her employee or agent was shown and reasonably relied upon such written evidence in any transaction forbidden by this Section is an affirmative defense in any criminal prosecution therefor or to any proceedings for the suspension or revocation of any license based thereon.
(Source: P.A. 101-27, eff. 6-25-19.)

Illinois Bill SB3443. Notary suspension and revocation

Amends the Illinois Notary Public Act. Provides that the application for appointment and commission as a notary public shall include the applicant’s business address if different than the applicant’s residence address. Provides that an applicant’s signature on a notary public application authorizes the Secretary of State to conduct a criminal background check of the applicant. Modifies provisions concerning changes causing a notary’s commission to cease to be in effect. Provides that the performance of a notarial act while the commission of a notary is suspended or revoked is a prohibited act. Provides that upon the filing of any claim against a notary public or upon payment to any individual harmed as a result of a breach of duty by the notary public, the entity that has issued the bond for the notary shall notify the Secretary of whether payment was made and the circumstances which led to the claim. Adds provisions and requirements concerning reprimand, suspension, and revocation of a notary’s Commission. Effective January 1, 2019.

Illinois Bill SB1778. Resale Dealers Act

(b) Every resale dealer shall require and keep a record of identification to be shown by each person selling any goods, articles, or other things to the resale dealer. If the identification shown is a driver’s license or a State identification card issued by the Secretary of State and contains a photograph of the person being identified, only one form of identification must be shown. If the identification shown is not a driver’s license or a State identification card issued by the Secretary of State and does not contain a photograph, 2 forms of identification must be shown, and one of the 2 forms of identification must include his or her address.

Illinois Personal Information Protection Act

“Personal information” means either of the following:
(1) An individual’s first name or first initial and last name in combination with any one or more of the following data elements, when either the name or the data elements are not encrypted or redacted or are encrypted or redacted but the keys to unencrypt or unredact or otherwise read the name or data elements have been acquired without authorization through the breach of security:
(A) Social Security number.
(B) Driver’s license number or State identification card number.
(C) Account number or credit or debit card number, or an account number or credit card number in combination with any required security code, access code, or password that would permit access to an individual’s financial account.
(D) Medical information.
(E) Health insurance information.
(F) Unique biometric data generated from measurements or technical analysis of human body characteristics used by the owner or licensee to authenticate an individual, such as a fingerprint, retina or iris image, or other unique physical representation or digital representation of biometric data.
(2) User name or email address, in combination with a password or security question and answer that would permit access to an online account, when either the user name or email address or password or security question and answer are not encrypted or redacted or are encrypted or redacted but the keys to unencrypt or unredact or otherwise read the data elements have been obtained through the breach of security.
“Personal information” does not include publicly available information that is lawfully made available to the general public from federal, State, or local government records.
(Source: P.A. 99-503, eff. 1-1-17.)

Illinois Biometric Information Privacy Act

The Biometric Information Privacy Act, 740 ILCS 14 et seq. (BIPA), enacted in 2008, was one of the first state law to address business’s collection of biometric data. The BIPA’s comprehensive set of rules for companies collecting biometric data of state residents has five key features:

• Requires informed consent prior to collection
• Permits a limited right to disclosure
• Mandates protection obligations and retention guidelines
• Prohibits profiting from biometric data
• Creates a private right of action for individuals harmed by BIPA violations
• Provides statutory damages up to $1,000 for each negligent violation, and up to $5,000 for each intentional or reckless violation

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