US District Judge James Robart has issued a pair of rulings that will likely set an important precedent for future lawsuits involving Illinois’ Biometric Information Privacy Act (BIPA). The rulings were made in two separate class action lawsuits – one against Amazon and another against Microsoft – that allege that the two companies violated the Act by collecting people’s biometric data without their consent.
Robart’s decisions specifically concern BIPA section 15(c), which states that organizations cannot “sell, lease, trade, or otherwise profit from a person’s or a customer’s biometric identifier or biometric information.” Both Amazon and Microsoft had been trying to have class actions dismissed, arguing that while they may have gathered biometric data, they did not sell biometric information directly to third parties and therefore did not profit from its sale.
However, Robart found that that argument was less than compelling, at least in Amazon’s case. The two lawsuits revolve around a facial recognition dataset that was put together with images extracted from Flickr, without the consent of the people in the photos. Amazon used that dataset to train a facial recognition algorithm that has since been integrated into other products that have been sold for profit to law enforcement agencies and other customers.
With that in mind, Robart concluded that that algorithm cannot be meaningfully separated from the data that was used to build it, and that Amazon commercially benefits from its illegal use of biometric data through the continued sale of that algorithm. He therefore allowed the lawsuit against the company to proceed, in the process establishing that BIPA covers products that were developed with biometric data, and not just the data itself.
Microsoft, meanwhile, fared slightly better under the same standard, largely because the company’s use of biometric data does not seem to have informed the design of its products in such a direct way (or at least, the plaintiffs have not yet made such claims in the lawsuit). Robart dismissed that particular portion of the lawsuit, but did so with leave to amend, so the plaintiffs can refile the claim should more evidence become available. The judge also declined to dismiss unjust enrichment claims for either company, so Microsoft is still facing legal action.
Google has tried to argue that BIPA does not cover photographs as it stares down its own class action lawsuit, though that argument would seem to be in jeopardy based on Judge Robart’s latest rulings. Several major companies have now reached large settlements in BIPA lawsuits, though TikTok’s $92 million and Walmart’s $10 million still pale in comparison to the $650 million settlement that Facebook reached last year.
Source: Westlaw Today
April 19, 2021 – by Eric Weiss