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Do Covid-19 Tracing Apps Need to Comply with Illinois Biometric Information Privacy Act?

Do Covid-19 Tracing Apps Need to Comply with Illinois Biometric Information Privacy Act?

By Karen Bridges

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.

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