A San Jose federal judge rejected most of the claims two men levied against Google over allegations its face scanning technology allowed the company to illegally profit, allegedly in violation of an Illinois privacy law.
U.S. District Judge Beth Freeman issued her opinion Dec. 5, echoing a nearly identical decision from Washington federal judge James Robart in a case bringing similar claims against Microsoft. The plaintiffs in both actions, Steven Vance and Tim Janecyk, accused tech companies of violating the Biometric Information Privacy Act of their home state, Illinois. They also have sued Amazon and IBM.
Vance and Janecyk allege the legal damage stems from posting their pictures on Flickr, a photo management and sharing website that compiled roughly 100 million images into a single, publicly available dataset in 2014. They say IBM created a Diversity in Faces Dataset in 2014, which included 1 million of the Flickr photos and, according to Freeman, “was designed to improve facial recognition systems' accuracy across diverse populations. Without permission from lead plaintiffs or other class members, IBM scanned the facial geometry of each image contained in the DiF Dataset, extracted biometric identifiers and information from those images, including craniofacial features and facial landmark points, and made the DiF Dataset available to other for-profit companies developing facial recognition technologies.”
Katrina Carroll
| Lynch Carpenter LLP
Google obtained IBM’s data, in large part to improve facial recognition on its Pixel smartphones, according to court records. The complaint alleged Google violated BIPA by collecting their information without informed, written consent and further said the company profited from the data it acquired.
Freeman rejected Google’s argument the plaintiffs failed to establish a connection between their allegation and the company’s activities in Illinois as sufficient for a motion to dismiss. Google has had an Illinois presence since 2000 and had at least 1,200 employees in Chicago in 2019.
“While it is possible that facts discovered during discovery will reveal that the alleged BIPA violations did not occur primarily in Illinois,” Freeman wrote, the facts alleged thus far do not warrant dismissal.
However, Freeman sided with Google on its interpretation of BIPA’s language saying “no private entity in possession of a biometric identifier or biometric information may sell, lease, trade or otherwise profit from a person’s or a customer’s biometric identifier or biometric information.”
While the plaintiffs alleged the legal harm was Google’s unlawful acquisition of protected data for the purpose of improving commercial products, Freeman said it is more legally appropriate to determine whether an entity directly received something of value for the transfer of protected data.
Freeman pointed to similar arguments against Microsoft and said that while the “alleged facts may establish that (Google) received some benefit from using the DiF Dataset, plaintiffs have failed to plead any facts plausibly showing that Defendant profited from their biometric data in a manner.”
When Judge Robart dismissed the Microsoft complaint, he declined to do so with respect to Amazon, preserving allegations that company integrated the plaintiffs’ pictures directly into its own merchandise, such as the Rekognition platform popular for criminal investigations.
Freeman dismissed the claim specific to profit without leave to amend. She would not dismiss an unjust enrichment claim, however, noting the plaintiffs can link that allegation to their surviving consent claim under BIPA. However, she agreed the plaintiffs failed to argue they had no other legal recourse, a required aspect of an unjust enrichment claim.
Seeking restitution or disgorgement through an unjust enrichment claim, Freeman wrote, requires showing specific facts that such a remedy would justify exceeding the financial penalties obtainable through proving a BIPA violation.
“Nonetheless, the court finds plaintiffs are not barred from seeking equitable relief in the form of an injunction under Illinois unjust enrichment law to the extent their claims are based on alleged future harm,” Freeman wrote, noting she also would not allow an amendment to intended to revive the possibility of financial recovery under this theory as well.
Google did not respond to a request for comment.
Plaintiffs are represented in the action by attorneys Gary Lynch, Jamisen A. Etzel, Todd D. Carpenter and Katrina Carroll, of the firm of Lynch Carpenter LLP, of Pittsburgh, San Diego and Chicago; and Scott R. Drury, of Drury Legal, of Highwood, Illinois.
Google is represented by attorneys Lauren J. Tsuji , Bobbie J. Wilson, Sunita Bali, Susan D. Fahringer and Anna Mouw Thompson, of the firm of Perkins Coie LLP, of San Francisco and Seattle.