Apple has asked an Illinois federal judge to rule in its favour in the class action over faceprints in the Photos app, citing an appeals court decision issued this month that put on-device biometric processing outside the reach of Illinois law.
The filing came on Wednesday. The precedent Apple relies on is G.T. v. Samsung Electronics America, in which the Seventh Circuit held that the terms the Biometric Information Privacy Act uses, possession, collection, capture and obtaining, all require the defendant to have some degree of control over the data.
The Samsung plaintiffs had alleged that the preinstalled Gallery app scanned saved photographs, built a face template capturing the geometry of each face and clustered images of the same person, and that the templates sat on the phone where users could not disable the feature. The appeals court affirmed dismissal, finding the plaintiffs alleged nothing from which it could infer that Samsung itself controlled the data.
That reasoning sided with Bhavilai v. Microsoft, a 2024 Northern District of Illinois decision holding that control of facial scan software is not control of the facial scan data it produces, and against Hazlitt v. Apple, a 2021 Southern District of Illinois ruling that Apple storing faceprints in on-device databases users could not reach amounted to complete and exclusive control.
The case against Apple concerns the People feature in Photos, which groups pictures of the same person. Plaintiffs say it creates faceprints without the notice, written consent and retention policy BIPA requires, and their claims cover both local device processing and iCloud storage. Apple argues the numerical vectors Photos uses cannot recreate a face and are not tied to identity.
The stakes come from the arithmetic of BIPA damages. The certified classes could include roughly 6.5 million Illinois residents, and the statute allows $1,000 for a negligent violation and $5,000 for an intentional or reckless one, putting theoretical maximum exposure at $32.5 billion. The Seventh Circuit declined earlier to let Apple appeal class certification immediately, leaving that order in place. The suit was first filed in 2020.
Illinois biometric litigation has otherwise been running against defendants. A judge this month certified a class of about 22,000 drivers against Union Pacific, Otter.ai was ordered to face voiceprint claims this month, and Amazon Ring is defending a proposed class action over its Familiar Faces feature.
Sources: Mayer Brown, TechRepublic
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By the ID Tech Editorial Team
