Amazon seeks dismissal of NBA 2K biometric scan class action

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Update: 

• Amazon filed a motion to dismiss an amended class action lawsuit claiming it violated Illinois’ biometric privacy laws by allegedly improperly collecting or disclosing the facial scans of teen users of the NBA 2K video game without consent. 
• The company argues the complaint failed to show it collected or disclosed the facial scans and that, as a passive cloud services provider, it is immune from the claims under the U.S. Communications Decency Act.
• The amended version of the complaint also no longer alleges Amazon or Amazon Web Services captured or transferred any data from NBA 2K’s facial-scan feature, according to Amazon. 
• A federal judge declined to dismiss the class action lawsuit in April 2023, determining at the time the complaint sufficiently alleged Amazon violated the Illinois Biometric Information Privacy Act. 

Amazon NBA 2K facial scans class action lawsuit overview: 

• Who: Ann Mayhall filed a class action lawsuit on behalf of her minor child against Amazon Web Services Inc. and Amazon.com Inc. 
• Why: Mayhall claims Amazon’s cloud-computing subsidiary violated biometric privacy law by allegedly collecting and sharing the facial feature vectors of individuals who uploaded them to the NBA 2K video game when creating a customizable in-game player.
• Where: The class action lawsuit was filed in Washington federal court. 
• What are my options: GameFly offers video game options that don’t require facial scans.

(April 13, 2023)

Amazon Web Services (AWS) fails to obtain consent before collecting and sharing facial feature vectors taken from data from scans video game players uploaded to Take 2 Interactive’s NBA 2K, a class action lawsuit filed in October 2021 alleges. 

Plaintiff Ann Mayhall claims Amazon’s cloud-computing subsidiary is given the facial scan images by Take 2 after a player has scanned and uploaded multiple photos of themselves to the NBA 2K video game to make their customized in-game player. 

Mayhall argues AWS “uses its computing power” to collect the player’s facial feature vectors to “construct a 3D face geometry of the user,” who she claims is not informed that their biometric identifiers are being collected and shared with third parties. 

NBA 2K players who upload their facial scans to the video game also do not give consent prior to having their biometric identifiers collected and shared with third parties, the Amazon class action alleges. 

Underage player could not have consented to biometric data collection, class action says

The class action lawsuit was filed by Mayhall on behalf of her teenage son, who she argues could not have given consent even if he had wanted to, because he is still a minor, according to the Amazon class action. 

Mayhall claims Amazon is guilty of unjust enrichment and of violating the Illinois Biometric Privacy Information Act (BIPA). She is demanding a jury trial — with a date currently set in August 2024. 

A federal judge in Washington agreed with a magistrate judge’s decision to decline a request by Amazon to dismiss the lawsuit earlier this month, ruling Mayhall had sufficiently alleged her claim under BIPA. 

A federal judge in Washington in October 2022 dismissed a separate class action lawsuit filed against Amazon over claims the company violated BIPA. The judge ruled there was not enough evidence to support BIPA violations related to Illinois. 

Have you had your biometric data collected and shared by Amazon without your knowledge or consent? Let us know in the comments.

The plaintiffs are represented by Jason T. Dennett and Cecily C. Jordan of Tousley Brain Stephens PLLC, Kevin P. Green of Goldenberg Heller & Antognoli PC and Christian G. Montroy of Montroy Law Offices LLC.

The NBA 2K facial scans class action lawsuit is Mayhall, et al. v. Amazon Web Services Inc., et al., Case No. 2:21-cv-01473, in the U.S. District Court for the Western District of Washington.

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