Plaintiffs Oppose Google’s Motion to Dismiss Face Scan Lawsuit

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In response to Google’s request to dismiss a proposed consolidated class action lawsuit over its face-recognition technology, plaintiffs told the Court that Google’s practice of scanning photographs falls under Illinois’ Biometric Information Privacy Act (BIPA).

Google is the latest tech giant to be accused of violating this state privacy law that restricts the collection and storage of so-called faceprints.

Illinois and Texas are the only two states that regulate how private companies may use biometric data, and Illinois is the only state that authorizes statutory damages for violations.

In their amended complaint, plaintiffs Lindabeth Rivera and Joseph Weiss opposed Google’s argument that BIPA does not cover scans of face geometry derived from photographs, stating that the “plain language of BIPA defines Google’s scans of face geometry to be biometric identifiers.”

Contending that Google’s motion to dismiss the class action lawsuit “misses the mark,” the plaintiffs state that Google’s attempts to overcome the plain meaning of BIPA fail because information derived from photographs is excluded from the definition of biometric information and not from the definition of biometric identifiers – which is essentially what Google collects to scan images to create faceprints.

“The greatest evil occurs when privacy-invading operators like Google obtain an individual’s picture and create a biometric identifier without his or her consent, as happened here,” the plaintiffs said. “By Google’s logic, nothing would stop it from amassing a tremendous, Orwellian electronic database of face scans with no permission whatsoever so long as the database was derived from photographs. And indeed, that appears to be exactly what it is doing.”

Illinois state legislators passed the Biometric Information Privacy Act back in 2008, when social media and photo-sharing services were still in their infancy, and many people were not thinking about the potential of face-recognition technology as a way of tracking online photos.

BIPA prohibits private companies from collecting or storing biometric identifiers — including face geometry — without first obtaining expressed written consent.

And this is exactly what Rivera claims happened when she used Google’s cloud-based photo-sharing service, Google Photos – a service that analyzes the facial features of people who appear in pictures uploaded to it.

Rivera, a resident of Chicago, claims in the consolidated class action lawsuit that a Google Photos user took approximately 11 pictures of her with an Android-based smartphone that automatically captured the images and uploaded them to Google Photos.

After the upload, Google software allegedly scanned Rivera’s unique face geometry and created a template of her face.

Rivera claims she does not use Google Photos or even owns an Android phone, thereby making her an unwitting participant in Google’s faceprinting collection practices.

“The use of facial recognition technology in the commercial context presents numerous consumer privacy concerns,” lawyers for Rivera stated.

Co-plaintiff Joseph Weiss cites similar allegations regarding Google’s cloud-based photo storage services, whose claims were consolidated with Rivera’s.

The lawsuit also cites two similar lawsuits filed against Facebook in California and Shutterfly in Illinois, which use face recognition technology. In each case, the courts carefully considered, and rejected, all of the same arguments raised by Google in the motion to dismiss, and held that scans of face geometry derived from photographs constitute “biometric identifiers.”

The plaintiffs also countered Google’s contention that the claims are inconsistent with the legislative history of BIPA, stating the argument is completely without merit. The statute itself explains that regulation of biometrics is necessary because they embody an individual’s “immutable biological characteristics,” and therefore unlike any other identifiers, such as social security numbers, cannot be changed in the event of a security breach, the plaintiffs assert.

Additionally, the plaintiffs contend that Google’s alternative argument for dismissal on grounds that the complaint “fails to allege a violation of BIPA in Illinois” and thus improperly exceeds the geographical scope of the statue is likewise without merit.

According to the opposition brief, Google conveniently ignores the overwhelming majority of circumstances relating to plaintiffs’ claims that occurred in Illinois.

“Thus, contrary to the motion to dismiss, Google has the ability to comply with BIPA in Illinois in the same way it has complied with European Union privacy regulations overseas — by using IP addresses and other geo-tracking data to limit its biometrics collection practices to photographs uploaded from the 49 states other than Illinois,” the motion said.

The plaintiffs are represented by Frank S. Hedin and David P. Milian of Carey Rodriguez Milian Gonya LLP; Katrina Carroll and Kyle A. Shamberg of Lite DePalma Greeberg LLC; and Robert Ahdoot, Tina Wolfson and Bradley King of Adhoot & Wolfson PC.

The Google Biometric Data Class Action Lawsuit is Rivera v. Google Inc., Case No. 1:16-cv-02714, in the U.S. District Court for the Northern District of Illinois.