Illinois's AI Video Interview Act, Revisited

The Artificial Intelligence Video Interview Act, 820 ILCS 42, took effect on 1 January 2020 and was the first US statute anywhere to regulate AI in hiring by name. Six years on it is worth rereading, because it is both narrower and stranger than its reputation: three obligations, one destruction duty, a reporting amendment, and no remedy.

The three duties before the interview

The Act applies to an employer that asks applicants to record a video interview and uses an AI analysis of the applicant-submitted videos. Where it applies, § 5 requires the employer to do three things, all before the interview:

• Notify each applicant, before the interview, that artificial intelligence may be used to analyse the applicant’s video interview and consider the applicant’s fitness for the position.
• Explain to each applicant how the artificial intelligence works and what general types of characteristics it uses to evaluate applicants.
• Obtain consent from the applicant to be evaluated by the artificial intelligence program as described in the explanation.

The Act says an employer may not use AI analysis without that consent. There is no written-form requirement and no prescribed wording, but the consent has to be to the evaluation as described, which ties it to the explanation given. Change what the system measures and the old explanation no longer supports the new consent.

The explanation duty is the hard one, and it is harder now than it was in 2020. “What general types of characteristics” a model uses is answerable for a scored competency framework and much less answerable for a large model asked to summarise a candidate’s responses. If you cannot describe the general types of characteristics in a sentence an applicant would understand, that is a signal about the system rather than about the drafting.

Sharing limits and the thirty-day destruction duty

§ 10 limits who may see the video: an employer may share applicant videos only with persons whose expertise or technology is necessary to evaluate an applicant’s fitness for a position. That is a purpose limitation on disclosure, and it reaches vendors, sub-processors and internal recipients equally.

§ 15 is the operationally demanding one. On request from the applicant, the employer must destroy the video and instruct any other persons who received copies to destroy the video, including all electronically generated backup copies, within 30 days of the request. Two words in that sentence create most of the work: instruct — so you must know who has copies — and backup — so a retention system that keeps deleted objects for ninety days is not compliant by itself.

The 2022 demographic reporting amendment

Public Act 102-0047 added § 20 with effect from 1 January 2022, and it applies to a narrower group than the rest of the Act: an employer that relies solely upon an artificial intelligence analysis of a video interview to determine whether an applicant will be selected for an in-person interview.

Such an employer must collect and report the race and ethnicity of applicants who are afforded an in-person interview after the AI analysis, of those who are not, and of applicants who are ultimately hired. The report goes to the Illinois Department of Commerce and Economic Opportunity annually, and the Department is directed to analyse the data and report to the Governor and the General Assembly on whether it discloses a racial bias.

The word “solely” means most employers escape this amendment by keeping a human in the screening loop, which is almost certainly why most do. The result is a reporting obligation with a small population, and it is worth being clear that the amendment creates a data-collection duty rather than a substantive standard: nothing in § 20 says what happens if the data does disclose bias.

Two gaps in the statute

It does not define artificial intelligence. The Act uses the phrase throughout and never says what it means. That was survivable in 2020 and is awkward now, because the question of whether an automated transcription plus keyword scoring, or a general-purpose model summarising an interview, counts as “artificial intelligence analysis” has no textual answer. Practically, an employer arguing that its system is not AI is arguing about a word the legislature declined to define, in front of a decision-maker who has read the marketing material.

It does not provide a remedy. There is no civil penalty, no designated enforcement agency, and no express private right of action. Whether Illinois courts would imply a private right of action is unresolved — Illinois applies a four-factor test for implied rights, and no published decision has applied it to this Act. It is also possible that a violation feeds a claim under the Illinois Consumer Fraud and Deceptive Business Practices Act, or supports a negligence-per-se style argument, and neither theory has been tested here. Nobody should be told this is settled in either direction.

What else applies to the same interview

The Act does not operate alone, and the statutes around it are the ones with teeth.

• BIPA. The Biometric Information Privacy Act, 740 ILCS 14, requires written notice and written release before collecting a face geometry scan or voiceprint, and it has an express private right of action with statutory damages. If your analysis extracts facial geometry or a voiceprint from the video, BIPA is the statute that matters, not this one. See the BIPA page and the statutory damages page.
• HB 3773. From 1 January 2026 the Illinois Human Rights Act treats the use of AI that has the effect of subjecting employees to discrimination on a protected basis as a civil rights violation, and separately addresses the use of zip code as a proxy. That is the substantive prohibition the 2020 Act lacks. See the HB 3773 page.
• Out-of-state analogues. Maryland requires a signed waiver for facial recognition during an interview, and New York City requires an annual bias audit and candidate notice. An employer recruiting across state lines has to satisfy the union of these, not the strictest one, because they require different things rather than different amounts of the same thing.

Read together, the sensible posture is to treat the 2020 Act as a floor: notify, explain in language an applicant can act on, take consent, keep a record of what was disclosed and when, know every system that holds a copy of the video, and be able to destroy them all inside thirty days. The Act may not tell you what happens if you do not. The statutes next to it do.