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Illinois Appellate Court does not see virtual eyeglass try-on feature as exempted by BIPA’s health care exclusion

9/16/24

By: Donald Patrick Eckler and Charlotte Meltzer

When an individual tries on non-prescription glasses using virtual software that captures some biometric information, are they a “patient in a health care setting” such that the service provider cannot be liable under the Illinois Biometric Privacy Act?

That was the question the First District Appellate Court of Illinois grappled with in Marino v. Gunnar Optiks LLC, 2024 IL App (1st) 231826. Unfortunately for companies that provide virtual try-on software, individuals trying on non-prescription glasses cannot fit within the health care exclusion of the Act.  

The Health Care Exclusion

While BIPA regulates the collection, use, safeguarding, handling, storage, retention, and destruction of “biometric identifiers” (e.g., retina or iris scan, fingerprint, voiceprint, or scan of hand or face geometry) and “biometric information” (e.g., any information converted, stored, or shared, based on an individual’s biometric identifier used to identify an individual), it specifically excludes from the definition of “biometric identifier” “information captured from a patient in a health care setting . . . .” 740 ILCS 14/10.  This is commonly referred to as the health care exclusion.   

Prior Federal Court Constructions of the Exclusion Unpersuasive

In Marino, plaintiff brought a class action alleging that the service provider’s software collects customers’ or potential customers’ facial biometrics. Plaintiff argued, therefore, the service provider violated various requirements under Section 15. See 740 ILCS 14/15 (West 2016). The service provider argued that its services fit within the health care exclusion, and relied on three federal court cases that applied the exclusion under comparable facts. The Court did not find the reasoning in these cases to be compelling. Marino, 2024 IL App. (1st) 231826, ¶ 9. First, according to the Court, these federal cases read the exclusion too broadly. For example, one found that a “patient” under BIPA is a “recipient of a ‘various personal service.’” The service provider also relied on the FDA’s classification of non-prescription sunglasses as Class I medical devices, meaning that the plaintiffs in those cases were considered patients receiving health care. See 21 C.F.R. § 886.5850 (2000). But the Court rejected that, too. The Court conceded that non-prescription sunglasses constitute Class I medical devices, but emphasized the sweeping nature of Class I medical devices, including items such as adhesive bandages and toothbrushes.   

Second, These Individuals Are Not a “Patient” in a “Health Care Setting”

Interpreting the plain meaning of the exclusion’s terms, the Court determined that the exclusion comes into play only where trained and licensed professionals collect biometric identifiers from individuals seeking out medical care. Cf. 740 ILCS 14/10. Accordingly, where an individual uses try-on software to see what non-prescription glasses look like on them—meaning they are not awaiting or receiving medical care—that individual is not a patient in a health care setting and thus is not excluded from the sweeping arm of BIPA.  

To get there, the Court instead relied on dictionary definitions of “patient,” “health care,” and “setting,” since none of those terms are defined in the BIPA statute, and decided that “patient” must be read more narrowly: a person using try-on software to test non-prescription sunglasses is not a “patient” because they do not use the software to obtain medical care. Deeming an individual using try-on software to test non-prescription glasses as a “patient in a health care setting” is inconsistent with BIPA’s plain language and the legislature’s intent, said the Court. 

As try-on software continue to advance, Illinois courthouses can continue to expect an influx of BIPA class actions, especially considering the Marino Court came out on this issue differently than the federal courts, who had all but barred BIPA actions against such service providers.

For more information, please contact Donald Patrick Eckler at patrick.eckler@fmglaw.com or your local FMG attorney.