Judge Sides with Microsoft in Biometric Privacy Suit Over Illicit Image Scans

A federal judge has dismissed a lawsuit alleging that X (formerly Twitter) violated Illinois’ Biometric Information Privacy Act (BIPA) through its use of Microsoft’s PhotoDNA software.

The lawsuit, brought by Mark Martell, claimed that the software used to detect illegal pornographic images necessitated the collection of biometric data, which he argued was done without consent, thereby violating BIPA.

U.S. District Judge Sunil R. Harjani ruled in favor of X, stating that PhotoDNA does not involve the collection of biometric data. Instead, it uses a process called hashing, in which a unique digital signature or “hash” is created for images to compare them against a database of known illegal content.

Harjani clarified that hashing does not constitute a biometric identifier as defined by BIPA, which covers retina or iris scans, fingerprints, voiceprints, or scans of hand or face geometry, explicitly excluding photographs.

The judge also noted that Martell did not present evidence showing that PhotoDNA conducts facial recognition or that its hashing process involves capturing biometric data. This clarification allows for the continued use of PhotoDNA in the tech industry, addressing privacy concerns while maintaining effective measures to combat the spread of illegal content.

PhotoDNA’s hashing approach has been effective in assisting tech companies in identifying and preventing the dissemination of child pornography, non-consensual adult pornography, terrorist images, and extremely violent content without compromising user privacy.

Earlier this week, Meta won an appeal against claims that it violated BIPA by analyzing the faces of people without profiles on its platform. A Ninth Circuit panel upheld the decision of an Illinois federal court, granting summary judgment in favor of Meta.

The Illinois Legislature recently passed an amendment to BIPA, changing the fine scheme from a “per-scan” basis to a “per-person” basis, reducing the financial burden on businesses. The bill is now awaiting Governor JB Pritzker’s signature.

Source: Reason

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June 20, 2024 – by Ali Nassar-Smith