Did Union Pacific Spend 8 Years Illegally Scanning Fingerprints?

An intermodal facility is a freight hub where cargo moves between trains and trucks. Truck drivers arrive to drop off or pick up containers, and the railroad has to know who’s coming through the gate. According to the court, between 2013 and 2021 Union Pacific used fingerprint scans to verify the identity of drivers who sought to enter its facilities in Illinois.

Twelve of those drivers sued. They contend the scanning violated BIPA, the state’s biometric privacy law, which is codified at 740 ILCS 14/1 to 14/99. Fingerprints are the classic example of biometric data: a body measurement that can’t be changed the way a password can.

The railroad doesn’t, in this appeal, argue that scanning fingerprints was lawful on its own terms. It argues the Act doesn’t reach it at all. The statute says it doesn’t apply to a “contractor, subcontractor, or agent of a State agency or local unit of government when working for that State agency or local unit of government.”

Union Pacific pointed to two sets of contracts. It operated commuter trains on behalf of Metra, the commuter railroad in northern Illinois, and it did design work on overpasses and grade crossings (where roads cross rail lines) at multiple locations. The drivers’ answer was simple: those contracts had nothing to do with intermodal freight.

Nothing in the contracts was disputed in the way you might expect. The disagreement was over grammar and meaning: what does “when working” require? The answer determines whether a company that holds any government contract is exempt everywhere, or only for the work that contract covers.

The people at the center of the conduct are truck drivers who sought entry to Union Pacific’s Illinois facilities. Twelve of them are before the court. The opinion doesn’t say how many other drivers were scanned, how the scans were stored or used, whether drivers were told about them, or whether anyone suffered a specific injury.

That absence matters for what can responsibly be said. This ruling documents a legal consequence for the railroad, that its exemption argument failed at this stage. It doesn’t document a consequence for the drivers beyond the fact that they contend their rights under the Act were violated.

Union Pacific asked the district court for summary judgment, a pretrial ruling that a case can be decided without a trial. Judge Jorge L. Alonso of the Northern District of Illinois denied the motion on August 25, 2025 and sided with the drivers on the exemption. On October 28, 2025, he certified the ruling for an interlocutory appeal, an appeal allowed before a case ends when a question is important and unsettled. The Seventh Circuit accepted it.

The appeals panel (Judges Easterbrook, Scudder and Pryor) affirmed. Because Illinois’s highest court hasn’t interpreted the exemption, a federal court’s job is to predict how that court would read it. The Seventh Circuit saw no good reason to think the Illinois Supreme Court would disagree with three Illinois appellate decisions that read “when working” to mean “in the course of.”

The court’s reasoning, briefly

The railroad argued that Illinois courts should read the statute as plainly meaning what it says. The court answered that “during the time” and “in the course of” are both linguistically plausible, so “plain meaning” doesn’t settle anything. It also rejected an argument based on a U.S. Supreme Court case about the word “during” in a federal criminal statute: the Illinois statute doesn’t use “during,” and a court can’t treat “when working” as if it did.

The district judge had also worried that the railroad’s reading would strip the phrase “when working for that State agency or local unit of government” of any effect. The Seventh Circuit said there’s “something to this,” but conceded the phrase could still do some work under the railroad’s reading, for example where a contract ends before a lawsuit is filed. It didn’t rest its decision on that point.

Affirming the denial of summary judgment is not a finding that Union Pacific violated BIPA. It means the exemption doesn’t end the case at this point. The merits remain undecided.

The drivers had also floated a middle path: even if a contract involved intermodal terminals, the exemption might depend on a “nexus” between that contract and the biometric collection, perhaps whether the contract required or allowed it. Union Pacific argued that would be hard to apply. The court declined to get into it, since these contracts had no connection to intermodal freight. It said that if a nexus question were presented in some case, it would be inclined to ask the Illinois Supreme Court to resolve it.

The court said it took the appeal “in large measure because the stakes appeared to be substantial” and the state judiciary hadn’t chosen between the two readings. If Union Pacific’s reading had prevailed, any company holding any government contract would be outside the Act for everything it did while that contract existed, regardless of what the contract covered. The opinion doesn’t quantify how many companies that could involve.

The opinion also notes a separate development in Clay v. Union Pacific R.R. (7th Cir. 2026): a recent amendment to the Act applies to pending cases and “greatly reduces the maximum recovery” for claims like these drivers’. The opinion doesn’t give the amounts.

Before the district court ruled, only one Illinois appellate decision had said anything about the exemption: Enriquez v. Navy Pier, Inc. (2022), which favored the drivers’ reading but only in dictum, meaning commentary that wasn’t necessary to the outcome. Thomas v. Cornerstone Services then adopted that reading as a holding, and Jones v. Help at Home agreed in dictum. The court described the state appellate judges as “unanimously” favoring “in the course of.”

Whether Union Pacific’s fingerprint program complied with BIPA is untouched by this ruling. So is what happened to the drivers’ data, and what the railroad might owe if the claims succeed. The opinion doesn’t report Union Pacific’s defenses on the merits or any statement from the company beyond its legal arguments. The Illinois Supreme Court could still take up the exemption and reach a different answer than the lower appellate courts did.