Do Covid-19 Tracing Apps Need to Comply with Illinois Biometric Information Privacy Act?
In 2008, Illinois enacted the Biometric Information Privacy Act (“BIPA”) to regulate private entities. 740 ILCS 14/1 eq seq. BIPA has no impact on a government’s ability to create an app. Private entities creating an app which collects biometric data must comply with BIPA by obtaining written consent from individuals providing biometric data. 740 ILCS 14/15 (b). The written consent must include a description of the data it is collecting, the reason for collection, and the length of time they intend to keep the data. 740 ILCS 14/15(b). The consent form must also contain a formal release of that information. Id.
What is Biometric Data?
Many of the proposed apps rely on GPS tracking to determine if a person was within 6 feet of a person with Covid-19. This begs the question of whether a person’s location is biometric data. BIPA states in part that a biometric identifier includes “a retina or iris scan, fingerprint, voiceprint, or scan of hand or face geometry.” 740 ILCS 14/10. Given this restriction, it is unlikely that an entity would need to obtain BIPA consents to track a person’s location.
What is not Biometric Data?
Under BIPA biometric data does not include “human biological samples used for valid scientific testing or screening” and “information captured from a patient in a health care setting or information collected, used, or stored for health care treatment, payment, or operations under the federal Health Insurance Portability and Accountability Act of 1996.” 740 ILCS 14/10. It appears that BIPA consents are un-necessary if its app is used for health care treatment such as the diagnoses or screening of Covid-19. However, the Courts have yet to examine this exception under BIPA.
What BIPA means going forward?
The Illinois Department of Public Health or a private entity may likely pursue a Covid-19 tracking app for use in Illinois without obtaining BIPA consents. Our experts at Schwartz & Kanyock, LLC have years of experience counseling clients in legal compliance and commercial litigation. If you or your business are developing an app and have concerns about BIPA compliance, schedule a consultation today with one of our attorneys.