Shutterfly Biometric Data Privacy Class Action Moves Forward

On Dec. 29, a federal judge in Illinois has denied Shutterfly’s motion to dismiss a potential class action lawsuit against the online photo publisher and subsidiary ThisLife LLC.

The class action lawsuit claims that Shutterfly has violated Illinois’ Biometric Information Privacy Act (BIPA) through their use of facial recognition technology.

In their motion to dismiss filed Sept. 16 of last year, Shutterfly and ThisLife stated that face geometry scans derived from photograph images and not an actual person were not covered under the Illinois BIPA.

Shutterfly argued that the Act had specifically excluded photographs and that BIPA was enacted to protect a person’s financial information. The company argued that their tagging system only includes arbitrary tags without a link to any individual’s personal or financial information.

U.S. District Judge Charles Ronald Norgle disagreed with Shutterfly’s assertion about the exclusion of photographs under BIPA and stated, “The BIPA was enacted in 2008, and to this date, the court is unaware of any judicial interpretation of the statute. The parties have provided none and the Court’s own research was also fruitless.”

Judge Norgle also disagreed with Shutterfly’s argument that the court did not have personal jurisdiction over the matter, as the company is not located in Illinois.

“Moreover, because the Plaintiff is a private Illinois resident there is a strong interest in adjudicating the matter locally, the Court finds there are sufficient minimum contacts to establish specific personal jurisdiction without offending the notions of fair play and substantial justice,” Judge Norgle states in his order dismissing the Shutterfly class action lawsuit. “Because the Court finds that it has personal jurisdiction over the Defendants, their motion to dismiss for lack of personal jurisdiction is denied.”

Plaintiff Brian Norberg initially filed the lawsuit against Shutterfly and ThisLife in June of last year, stating that he was not a member of Shutterfly and that when a Shutterfly user uploaded a photo, the company used face scanning technology and prompted the user to “tag” Norberg’s face. He alleges that his personal data was stored as a template in Shutterfly’s database and prompted the user to tag other photos of Norberg.

Norberg states the photo tagging, biometric technology use and information storage by Shutterfly happened without his consent.

Facebook is facing similar claims of BIPA violations in several pending class action lawsuits filed in Illinois also alleging violations of BIPA. Plaintiffs allege that the photo tagging feature in Facebook and database of templates that includes biometric data of users and non-users of the social media site are in violation of the state’s privacy law.

Facbook has also attempted to dismiss one of the privacy class action lawsuits by saying that biometric data gained from accessing photographs is specifically excluded.

Norberg is represented by David P. Milian and Frank S. Hedin of Carey Rodriguez O’Keefe Milian Gonya LLP and Katrina Carroll 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.