A federal judge has certified a class of Illinois Amazon Photos users in a lawsuit alleging that Amazon violated the state’s Biometric Information Privacy Act (BIPA) by scanning faces in their uploaded pictures without the notice and written consent the law requires. He declined to certify a second class of non-users whose faces appear in other people’s photos.
U.S. District Judge John J. Tharp Jr. of the Northern District of Illinois granted the motion on November 10 in Hogan v. Amazon.com, Inc. The certified class covers Illinois residents whose faces appear in at least one photo uploaded to their own Amazon Photos account in Illinois while image recognition was enabled, from October 18, 2016, through January 31, 2023, when Amazon disabled the feature for Illinois residents because of the lawsuit.
When image recognition is on, the opinion explains, Amazon’s software detects faces in photos and generates numerical representations called embeddings, which it uses to group pictures of the same person. The record shows 339,847 Amazon Photos accounts with Illinois billing addresses that had image recognition enabled at some point during the class period.
The opinion notes that users could switch the feature on without viewing Amazon’s Notice to Illinois Residents, and that the Amazon Photos Terms of Use do not use terms such as “biometric identifier,” “biometric information” or “facial recognition.” Tharp found three questions common to the class: whether the face data Amazon collected counts as a biometric identifier or biometric information under BIPA, whether Amazon gave users the required notice, and whether it obtained a written release.
“Amazon insists that ‘informed consent’ is an individualized issue, but this is not a subjective inquiry,” Tharp wrote. “The ‘informed’ piece concerns what notice Amazon provided and whether it comports with BIPA’s requirements.”
He agreed with Amazon that whether each photo was uploaded in Illinois has to be proven person by person, but found that common questions still predominate, citing the Seventh Circuit’s ruling this year in a BIPA case over Amazon’s Virtual Try-On feature. Non-users, by contrast, are “an amorphous and nearly unidentifiable group of people,” he wrote, because Amazon does not identify the people whose faces appear in stored photos.
The court appointed Angela Hogan and her minor son as class representatives. Kenneth A. Wexler and Justin N. Boley of Wexler Boley & Elgersma were named co-lead counsel along with lawyers from Gustafson Gluek, Stephan Zouras and Keller Rohrback. The parties are due at a December 1 status hearing to set a schedule for notifying class members, and the opinion says notice must go out before the court rules on pending summary judgment motions.
Sources: U.S. District Court for the Northern District of Illinois (via CourtListener), GlobeNewswire
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By the ID Tech Editorial Team
