Page 11 - Litigation

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Litigation | MONDAY, FEBRUARY 22, 2016 | S11
Biometric Data
« Continued from page S3
since been consolidated and transferred to the Northern District of California, present a challenge to Facebook’s omnipresent “Tag Suggestions” feature, which allegedly scans photographs uploaded by a Facebook user and then identifies faces appearing in those photographs. The class action plaintiffs allege that Facebook’s Tag Suggestions feature vio- lates BIPA because it obtains this biometric identifier without a Facebook user’s knowl- edge or consent.20 On Oct. 9, 2015, Facebook filed a motion to dismiss arguing that the plaintiffs cannot state a claim under BIPA because BIPA expressly excludes from its definition of “biometric identifier” photo- graphs and any information derived from those photographs.21 The motion to dismiss is pending.22
The outcome of Facebook’s motion to dis- miss will likely be impacted by the recent ruling in another class action lawsuit alleg- ing a violation of BIPA: Norberg v. Shutterfly, No. 15-cv-05351 (N.D. Ill. June 17, 2015). In Norberg, the plaintiff alleged that Shutterfly violated BIPA by creating, collecting, and storing millions of “face templates” without consent. Shutterfly allegedly created these face templates by using sophisticated facial recognition technology that extracts and analyzes data from the points and contours of faces appearing in photos uploaded by their users. Each face template is unique to a particular individual.
Shutterfly filed a motion to dismiss, arguing that BIPA excludes photographs and infor- mation derived from photographs from the definition of biometric information. Marking the first judicial interpretation of BIPA, the court acknowledged that BIPA’s definition of biometric information excludes photographs and information derived from photographs. The court noted further that to survive a motion to dismiss, the alleged claim must
actually suggest that the plaintiff has a right to relief. It would appear therefore that the plaintiff’s claim should fail since the plaintiff cannot suggest a right to relief under BIPA.
But the court nonetheless found that the plaintiff stated a claim for relief under BIPA by alleging that Shutterfly is using the plaintiff’s personal face pattern to recognize and iden- tify him in photographs posted to websites.23
The long-term ramifications of the Shut- terfly decision are unclear; however, in the
short-term, the decision puts: (1) further uncertainty in BIPA’s definition of biometric information; (2) companies at risk for suit; and (3) consumers’ biometric information at risk.
Open Questions
The infancy and dearth of biometric stat- utes, and their corresponding lack of judicial interpretation, create uncertainty for com- panies that use biometric information. Com-
panies cannot effectively protect biometric information without a clear and consistent definition of biometric information. This uncertain statutory landscape has opened the door to savvy class action attorneys whose focus is arguably not on protecting an individual’s biometric information but on capitalizing from nascent and ineffective bio- metric privacy laws. In turn, companies focus not on protecting biometric information, but on avoiding being sued. In the end, biomet- ric privacy laws do little to achieve their intended purpose of protecting biometric information.
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1. 740 ILL. COMP. STAT. §14/1 et seq. (2008). 2. Id., §14/10.
3. Id. (emphasis added).
4. Id.
5. TEX. BUS. & COM. CODE ANN. §503.001 (2009).
6. Id., §503.001(a).
7. Assemb. B. 6866, 2015-2016 Reg. Sess. (N.Y. April 8,
2015); S.B. 4887, 2015-2016 Reg. Sess. (N.Y. April 22, 2015) (proposed amendment to N.Y. GEN. BUS. LAW §899-aa) (emphasis added).
8. H.B. 96, 29th Legis. §18.14.090 (AK 2015-2016).
9. Id.
10. https://leginfo.legislature.ca.gov/faces/billStatus-
Client.xhtml?bill_id=201520160AB83.
11. Assemb. B. 83, 2015-2016 Reg. Sess. (CA Jan.
6, 2015) (proposed amendment to CAL. CIV. CODE §1798.81.5(d)(3)) (emphasis added).
12. 740 ILL. COMP. STAT. 14/20.
13. TEX. BUS. & COM. CODE ANN. §503.001(d).
14. 47 U.S.C. §227(b)(3)(B).
15. Assemb. B. 6866, 2015-2016 Reg. Sess. (N.Y. Apr. 8,
2015); S.B. 4887, 2015-2016 Reg. Sess. (N.Y. Apr. 22, 2015), §6.
16. H.B. 96, 29th Legis. §18.14.070 (AK 2015-2016).
17. CAL. CIV. CODE §1798.84(b).
18. No. 13-1339 (argued Nov. 2, 2015).
19. Carlo Licata, Adam Pezen and Nimesh Patel v.
Facebook (In re Facebook Biometric Information Privacy Litig.), Nos. 3:15-cv-03747-JD, 3:15-cv-03748-JD, 3:15-cv- 03749-JD (N.D. Cal.).
20. In re Facebook Biometric Information Privacy Litig., No. 3:15-cv-03747-JD, Consolidated Class Action Complaint, ¶ ¶ 3-5 (ECF No. 40, Aug. 28, 2015).
21. Id., Facebook’s Motion to Dismiss (ECF No. 69, Oct. 9, 2015).
22. Another suit against Facebook, (Gullen v. Face- book, No. 1:15-cv-07681, (N.D. Ill. Aug. 31, 2015)), which also asserted BIPA violations based on Facebook’s Tag Suggestions feature, was dismissed for lack of personal jurisdiction. (ECF No. 37, Jan. 21, 2016.)
23. Order on Shutterfly’s Motion to Dismiss (ECF No. 41, Dec. 29, 2015).
Statute
Biometric Identifier Means...
Certain Unanswered Questions
BIPA
A retina or iris scan, fingerprint, voiceprint, or hand scan or face geometry.
CUBI
A retina or iris scan, fingerprint, voiceprint, or hand scan or face geometry.
NY Proposed Statute
Data generated by automatic measurements of an individual’s physical characteristics to authenticate an individual’s identity.
AK Proposed Statute
Fingerprints, handprints, voices, iris images, retinal images, vein scans, hand geometry, finger geometry, or other physical characteristics of an individual.
CA Proposed Statute
Data generated by automatic measurements of an individual’s biological characteristics that are used to authenticate an individual’s identity, such as a fingerprint, voice print, eye retinas or irises, or other unique biological characteristic.
Is a photograph or information derived from a photograph con- sidered a “biometric identifier?”
Can a record of hand or face geometry be derived from a photograph?
What are “automatic measure- ments?” Are “physical character- istics” identical to the physical characteristics expressly excluded under BIPA? Or are “physical characteristics” synonymous with “biological characteristics” under CA’s Proposed Statute?
What “other physical characteris- tics” are biometric information.
What are “automatic measure- ments?” Are “biological character- istics” synonymous with “physical characteristics” under NY’s proposed statute?
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