A federal judge has ended a biometrics class action regarding an online eyeglasses retailer’s use of facial scans.
Tanya Svoboda sued Frames for America in September 2021 in Cook County Circuit Court, alleging the company violated the Illinois Biometric Information Privacy Act through a website function that allows users to upload a photo of their face, then places images of eyeglasses on the face photo so shoppers can determine how they might look wearing the products.
Frames for America operates the FramesDirect.com online eyeglasses retail site.
Frames for America removed the complaint to federal court, then asked U.S. District Judge Harry Leinenweber to dismiss the complaint, a motion he granted in an opinion filed Sept. 8.
According to Leinenweber, the issue turned on a clause in the BIPA law specifically stating “biometric identifiers do not include 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.”
Svoboda argued the HIPAA exemption is irrelevant and said her claim should survive because she didn’t consult with a medical professional while using the website, didn’t request any treatment from the company and never bought glasses from Frames for America.
Leinenweber said his colleague Judge Charles Kocoras “considered nearly an identical claim” in a March 2020 opinion resolving Vo vs. VSP Retail Development Holding. Although that complaint involved an alleged BIPA violation connected to virtual try-on software, Svoboda argued the case is inapplicable because of a reliance on HIPAA.
Though he disagreed with Svoboda’s position, Leinenweber said he would analyze her “claim through the purported ‘general health care exemption.’ ”
Since BIPA doesn’t define “patient” or “health care setting,” Leinenweber said Illinois law allows use of dictionary definitions, and referred to Merriam-Webster’s explanations of “an individual awaiting or under medical care and treatment” or “the recipient of any of various personal services” and “efforts to maintain or restore physical, mental or emotional well-being specially by trained and licensed professionals.”
Although Svoboda noted no “trained and licensed professionals” from Frames for America provided treatment to her, Leinenweber said “prescription lenses, non-prescription sunglasses, and frames meant to hold prescription lenses are all Class 1 medical devices.” By protecting or correcting vision, he continued, glasses “maintain or restore physical … well-being.”
Therefore, Leinenweber wrote, “even if she did not personally consult with any trained or licensed professional, Svoboda would have received a health care service had she purchased glasses from Frames.”
He likened the online experience to fitting and evaluation performed in an optometrists’ office and said, although Svoboda never made a purchase, she still received services that meet the dictionary definition of health care. That makes her a patient and triggers the BIPA exemption, the judge said. He then quoted Judge Kocoras, who wrote “an individual cannot escape BIPA’s health care exemption simply by choosing to forego the health care service for which they were evaluated.”
Svoboda has been represented in the action by attorneys Keith J. Keogh and Theodore H. Kuyper, of Keogh Law, of Chicago.
Frames for America has been represented by attorney Anne E. Larson, of the firm of Ogletree Deakins Nash Smoak & Stewart, of Chicago.
Svoboda’s complaint is similar to other class actions against online eyeglass sellers. Luxottica the world’s largest maker, distributor and seller of eyewear, reached an $8 million settlement in June to end a lawsuit from people use who used the company’s Try-On Application Tool while shopping for Ray-Ban sunglasses. The company failed in its attempts to get the complaint dismissed.