Shutterfly Fights Biometric Data Class Action Lawsuit

Shutterfly Inc. continues to fight a biometric data class action lawsuit, which claims the company violated Illinois privacy laws when Shutterfly gathered users’ biometric data from their photos through the use of facial recognition software. However, Shutterfly argues that the claims have no merit, because the language of the state’s privacy law directly excludes photographs and information derived from said photographs.

On Sept. 16, Shutterfly informed the presiding Illinois federal judge that allowing the users of the image publishing website to tag photos third-party family and friends should not constitute a violation of the Illinois Biometric Information Privacy Act. This state law forbids the in-person collection of biometric data from scans of face, fingerprint, retina, and voiceprints, which are “biometric identifiers” usually used as financial or personal identification information.

Plaintiff Brian Norberg originally filed this biometric data class action lawsuit in June, alleging that a Shutterfly user uploaded a photo of him. Later on, when that same user uploaded more photos of Norberg, they were asked if those uploaded photos should be tagged with Norberg’s name.

Norberg argues that Shutterfly and ThisLife LLC scan every photo uploaded by users in order to collect geometric contours and points. This data is then used to create a digitized face template which, according to the Shutterfly class action lawsuit, falls under BIPA’s definition of “scans of face geometry” prohibited by the statute.

Shutterfly disagrees, and in its most recent memorandum supporting their motion for dismissal, it states that the plaintiff’s proposal to treat information extracted from photos and biometric identifiers would essentially “entirely jettison the statutory exclusion of photographs.”

The defending company goes on to state: “The Legislature specifically excluded all photographs, period. If the Legislature wanted to include some types of photographs, or some types of information derived from some types of photographs, they would have done so. Plaintiff’s reading contradicts the explicit words of the statute.”

In response to Shutterfly’s motion for dismissal of the biometric data class action lawsuit, Norberg argued that allowing Shutterfly and ThisLife to scan uploaded photos with the purpose of collecting data would undermine the purpose of BIPA.

He goes on to say, “By defendants’ logic, nothing would stop them from amassing a tremendous, Orwellian electronic database of face scans with no permission whatsoever so long as the database [was] derived from photographs.” However, Shutterfly has called the plaintiff’s allegations “false and unsupported,” and states that none of the other biometric identifiers included in the BIPA definition are taken, at least initially, from photos.

Furthermore, Shutterfly points out that the point of BIPA is to prevent individuals’ personal financial data or identifying information from being stolen, as a finger print could possibly lead to identify theft. Shutterfly argues that their biometric program only uses arbitrary tags and does not include links to any users or tagged individuals’ personal or financial information.

The image publishing company concluded their supporting brief with a statement that the Illinois court has no jurisdiction over the matter, as Shutterfly is not located in that state.

The plaintiff is represented by David P. Milian and Frank S. Hedin of Carey Rodriguez O’Keefe Milian Gonya LLP, and Katrina Carroll and Kyle Shamberg of Lite DePalma Greenberg LLC.

The Shutterfly Biometric Data Class Action Lawsuit is Brian Norberg v. Shutterfly Inc., et al., Case No. 1:15-cv-05351, in the U.S. District Court for the Northern District of Illinois.

UPDATE: On Feb. 1, 2016, Shutterfly asked a federal judge to reconsider dismissing the class action lawsuit by citing a recent decision to dismiss a Facebook class action lawsuit that alleged very similar claims.

UPDATE 2: On Mar. 10, 2016, Shutterfly filed a motion asking the court to compel arbitration in this class action lawsuit after an investigation found that the unidentified Shutterfly user who uploaded the photos online is the plaintiff’s wife.

UPDATE 3: On Mar. 16, 2016, Shutterfly asked that a federal court judge issue a stay on this proposed class action lawsuit until it rules on its recent request for the judge to compel arbitration.