Google Argues BIPA Protections Do Not Apply to Photos in Class Action Lawsuit

Google is planning to contest a class action lawsuit that alleges that the company violated the Biometric Information Privacy Act (BIPA) in Illinois. The lawsuit was filed in February, and specifically concerns a facial recognition database that was created after extracting facial templates from photos on the company’s platform.

BIPA prevents companies from obtaining and storing an individual’s biometric information without their express written consent, which the tech giant did not have while creating its database. However, the company will try to argue that the law does not apply to photographs, and instead only covers templates obtained through other means, such as an in-person scan.

While the law does include exceptions for photographs, Google’s legal strategy is shaky in light of prior BIPA outcomes. Both Facebook and Shutterfly have tried to make similar arguments in the past, but judges have argued that such a sweeping exception would be contrary to the intent of the Illinois law, and have consequently ruled against both companies. Facebook reached a $550 million settlement earlier this year, though the judge in that case believes that amount is too low and did not grant preliminary approval. The company is expected to present more evidence to support its settlement in July.

Meanwhile, Google will try to have its own lawsuit moved to Illinois. The class action suit was initially filed in San Jose, California, though the plaintiff is a resident of Illinois. Google has had prior success in the state, where a District Court judge ruled that faces are public information and that Google’s use of facial recognition does not constitute concrete harm. That case is now under appeal.

Google may not get a favorable outcome even if it does manage to transfer the case. While Facebook’s case was settled in California, the decision against Shutterfly was made in Illinois, though that case was recently sent to arbitration.

Google also plans to argue that BIPA does not apply across state lines, though judges have rejected that argument since it would make it virtually impossible for any state to apply consumer protection laws online.    

Source: Digital News Daily

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June 17, 2020 – by Eric Weiss