NEW YORK — A New York federal judge has tossed out a potential digital biometrics privacy class action lawsuit against the
makers of NBA video games, saying the video basketball game players likely should have known their facial likenesses would be stored by a system that took 15 minutes to complete a scan of a player's face and store the image for use as an avatar in the game.
But the true impact of the case on other lawsuits brought under an Illinois biometrics privacy law is likely to be small, said an attorney whose practice focuses on digital privacy laws.
The lawsuit involved Take-Two Interactive Software’s
“MyPlayer” avatar feature of its "NBA 2K15" and "NBA 2K16" games, which allow users
to create personalized digital avatars through face-scanning technology.
Attorney Linn Freedman, with the firm of Robinson+Cole, of Providence, R.I., told the Cook County Record that the
decision isn’t going to have a lasting impact on laws, such as the Illinois Biometric Information Privacy Act (BIPA).
“I don’t think this case is going to have a significant
impact on future cases other than to show that you have to show that there was
some sort of harm,” Freedman said. “They could not do that in this case.”
Freedman noted that in this case, the plaintiffs had to sit
at their computer to use a camera function to scan the user’s face and head. They
must agree to terms and conditions that state that the face scan will be
visible to others. The company allegedly stores the biometric data for an
indefinite period of time on its servers.
“In this case, the plaintiffs alleged that the video games
violated the Illinois Biometrics Information Privacy Act,” Freedman said. “They
alleged that the company did not get the gamers’ permission prior to using and
storing their facial features and disclosed the likeness of them to other players.”
However, the plaintiffs had to sit at their computer for 15
minutes to complete the scan, and Freedman said that simple act created a crack
in their case.
“The facts of this case just weren’t good,” she said. “They
agreed to buy the game, and they agreed to use that particularly live game
feature and they sat there to create an avatar. The facts were weak. This is
something that was going to be challenging for them.”
U.S. District Judge John Koeltl of the Southern District of New
York disagreed that the game developers violated BIPA, and dismissed the case,
stating that the use of the images to create avatars was not a violation of the
Koeltl also ruled that there was no evidence that the company
was using the images for anything else, nor was there any evidence that they
disseminated the information. As a result, the plaintiffs could not prove
damages and had no basis for a lawsuit.
The plaintiffs, brother-and-sister video basketball players
Ricardo and Vanessa Vigil, plan to appeal the decision.
Freedman said the decision is one more case for the legal
community to view to get a feel for what courts are going to do in legal cases.
“I don’t think this case is going to have any impact on the
ability to move forward on future litigation,” she said. “Because it centers
on state law, it isn’t going to have much impact outside Illinois.”
Currently, a handful of states have biometric privacy laws
on the books, and Freedman said she
expects the number of states that have these types of laws to increase.
“This case will include language that courts can use for precedent,”
she said. “It is another piece of
However, the decision likely isn’t going to impact future litigation.
Freedman noted that plaintiffs must have facts that support action.
“When you look at this case and the language, the intent is
that when people are sharing their biometric information with companies, those companies
need to be careful with that information,” Freedman said. “The cases that we
have seen so far have not had facts that were consistent with the intent of the
As facial scanning technology continues to improve and new
developments enhance the technology, Freedman said it will be vital to keep an
eye on precedent-setting cases like this.
“The interesting thing about these cases is that they are so
new,” she said. “Every case in this area that interprets statute is going
to be very important.”