Class Action Filed Over NBA Video Game 3-D Face Scanning

Top Class Actions’s website and social media posts use affiliate links. If you make a purchase using such links, we may receive a commission, but it will not result in any additional charges to you. Please review our Affiliate Link Disclosure for more information.

A pair of video game enthusiasts hit a video game developer with a class action lawsuit, claiming violations of Illinois law when the company captured and stored 3-D face scans. The gamers said their likenesses were stored on two video games, NBA 2K15 and NBA 2K16, and their scans were shared online with other video game players.

Plaintiffs Hadit Santana and Vanessa Vigil explain that the game developer, Take-Two Interactive Software Inc., did not obtain written consent from them to distribute their 3-D face scan images to other players, and the images are stored indefinitely. According to the face scan class action lawsuit, this is a violation of the Illinois Biometric Information Privacy Act.

According to the face scanning class action lawsuit, the Illinois legislature has explained that biometrics include information about a person’s biologically unique information, and this information is different than other unique identification used to access sensitive information like finances or other private data.

The Illinois Biometric Information Privacy Act was enacted to safeguard private biometric information to present such information from reaching the wrong individuals who may use the information for identity theft purposes.

“For example, social security numbers, when compromised, can be changed,” the class action lawsuit says. “Biometrics, however, are biologically unique to the individual; therefore, when compromised, the individual has no recourse, is at heightened risk for identity theft, and is likely to withdraw from biometric-facilitated transactions.”

According to the face scanning class action lawsuit, tens of thousands of Illinois residents likely had face scans from the NBA 2K15 and NBA 2K16 games. The plaintiffs allegedly had their faces scanned by a Playstation 4 system, but the Xbox One and other systems reportedly have face scanning capabilities as well.

The “MyPlayer” feature of the two NBA games allows players to create a player in their likeness which is generated using the face scans. The software makes a 3-D image of the video game user’s face. Gamers get close to the camera and slowly turn their heads to the left and right while the camera scans their face. The face scanning process takes about 15 minutes to complete, according to the biometric data class action lawsuit.

The plaintiffs maintain that they were unaware that the scans of face geometry were stored indefinitely on a remote server when they initially played the game. They allege that they were not informed in writing that biometric information was being collected or stored and were not informed of the length of time their data would be stored and used.

By filing the biometric data class action lawsuit, Santana and Vigil seek to certify a Class of Illinois residents who played NBA 2K15 and/or NBA 2K16 games and had their faces scanned to render 3-D player images for the game without being informed by Take-Two that biometric information was being collected and stored, and without being informed of the purpose and length of time that the data was being collected or stored.

The face scanning class action lawsuit brings forth a single count alleging the violation of the Illinois Biometric Information Privacy Act. The plaintiffs are seeking an award of statutory damages in the amount of $5,000 for each intentional and reckless violation of BIPA, or damages of $1,000 if the court deems the defendant’s acts negligent. They are also seeking an injunction to have Take-Two brought into compliance with the BIPA.

Santana and Vigil are represented by John Christopher Carey of Carey Rodriguez Greenberg & Paul LLP.

The NBA Video Game 3-D Face Scanning Class Action Lawsuit is Santana, et al. v. Take-Two Interactive Software Inc., Case No. 1:15-cv-08211, in the U.S. District Court for the Southern District of New York.