After New Hearing, Judge ‘Fears’ BIPA Case Against Google Will Have to Proceed

A class-action lawsuit alleging that Google misused Illinois residents’ biometric data has recently gained traction after surviving a third motion to dismiss. This case, filed by Illinois resident Steven Vance, argues that Google violated the state’s Biometric Information Privacy Act (BIPA) by using residents’ facial recognition data without consent.

The core of the complaint centers around claims that Google sourced photos from IBM, which had initially obtained them from the image-sharing platform Flickr, and then used these images to enhance its facial recognition technology. The lawsuit, which seeks monetary damages and an injunction to halt Google’s data collection practices, contends that Google leveraged this data not merely for research but also for profit.

As Courthouse News Service’s Matt Simons reports, presiding U.S. District Court Judge Beth Labson Freeman recently indicated that she might allow the suit to move forward. Although she has not yet issued a formal ruling, Freeman’s remarks suggested she finds the latest version of the plaintiffs’ arguments compelling.

“I fear that the case will go forward,” she stated during the hearing, marking a notable shift from her earlier stance. Previously, Freeman had dismissed a version of the lawsuit in March 2024, while giving the plaintiffs the opportunity to amend their complaint.

A central issue in the hearing was the extraterritorial reach of Illinois law. Google’s attorneys argued that, as a California-based company with no direct interactions with Illinois residents for this data collection, it should not be subject to Illinois’ BIPA regulations. They claimed that Google had obtained the data indirectly from IBM, a New York-based entity, thereby avoiding direct jurisdictional ties to Illinois.

Judge Freeman, however, did not accept this defense, responding to Google’s attorney that she could not evaluate the evidence solely from Google’s perspective. She indicated her belief that the revised lawsuit established sufficient grounds to proceed with the extraterritorial claims.

The plaintiffs also introduced claims of unjust enrichment, alleging that Google unfairly benefited from the unauthorized use of their biometric data. Attorney Scott Drury argued that Google’s actions were morally reprehensible and legally unjust, suggesting that the company’s actions amount to more than mere data collection—they involve profiting from sensitive personal information without consent. Freeman appeared receptive to this claim, underscoring that the threshold to withstand a motion to dismiss is relatively low. Drury also argued for an injunction to prevent further harm, asserting that without such a measure, his clients’ privacy would continue to be violated.

While Judge Freeman has not reached a final decision, she cautioned that this could be the plaintiffs’ last chance to establish the case’s viability. She noted that if the plaintiffs fail to show that Google’s use of the data had a substantial connection to Illinois, the case could be dismissed. Nevertheless, the plaintiffs’ claims have shown resilience, surviving three dismissal attempts thus far and keeping Google’s data practices under legal scrutiny.

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October 11, 2024 – by Cass Kennedy