A Chicago federal judge has refused Google’s request to delete a class action lawsuit accusing the tech titan of violating an Illinois law by automatically creating and storing face scans of people in photos uploaded to its cloud-based Google Photos service without first collecting written authorization from those whose faces were scanned.

On Feb. 27, U.S. District Judge Edmond E. Chang sided with Lindabeth Rivera and Joseph Weiss, named plaintiffs in the action, saying, to date, Google had not done enough to short-circuit their claims under the Illinois Biometric Information Privacy Act.

“It is conceivable that discovery will reveal that what Google is actually doing does not fit within the definition of biometric identifiers as interpreted by the Court,” Judge Chang wrote. “Until that time, however, the Plaintiffs’ allegations must be taken as true, and they adequately state a claim under the Privacy Act.”

Rivera and Weiss are represented in the action by attorneys with the firms of Lite DePalma Greenberg LLC, of Chicago; Carey Rodriguez O’Keefe Milian Gonya LLP, of Miami, Fla.; and Ahdoot & Wolfson PC, of West Hollywood, Calif.

The class action was first filed in March 2016, accusing the Mountain View, Calif.-based Google of violating the Illinois BIPA when it allegedly created and stored face scans of Illinois residents Rivera and Weiss, without their consent, from photos that others uploaded onto Google’s photo sharing service.

It is one of a number of cases brought by a number of different plaintiffs and attorney firms alleging various tech companies, including social media giant Facebook and photo sharing service Shutterfly, violated the Illinois law by applying facial recognition technology to uploaded and stored photos.

Under the Illinois law, which was enacted in 2008, private entities are barred from obtaining and possessing people’s biometric identifiers without their consent. The law defines a biometric identifier as “any personal feature that is unique to an individual, including fingerprints, iris scans, DNA and ‘face geometry,’ among others,” and establishes biometric information as “any information captured, converted, stored, or shared based on a person’s biometric identifier used to identify an individual.”

According to the class action complaint, Google Photos has “created, collected and stored” millions of “face templates or face prints – highly detailed geometric maps of the face – from millions of Illinois residents, many thousands of whom are not even enrolled in the Google Photos service,” using “sophisticated facial recognition technology” to organize and group photos based on the people pictured.

The complaint noted the law allows for damages of $5,000 for each intentional violation and $1,000 for each negligent violation, meaning Google could be on the hook for millions of dollars in damages.

In response to the lawsuit, Google asked the judge to dismiss the action, essentially arguing the law should not apply to such photographs, and the Illinois state law cannot be applied across the country, under the U.S. Constitution, as it would effectively force Google to comply everywhere with a law enacted only in Illinois.

Judge Chang set aside Google’s arguments on the law’s scope and constitutionality, saying those would be better left for a later time after further discovery into the case could be conducted.

The judge, however, said, for now, the plaintiffs had established Google’s face scans may have violated Illinois law.

And Chang said Google’s arguments crashed over the applicability of the law to photos.

According to the judge’s opinion, Google had attempted to argue the law should only apply to face scans generated in person, and not scans generated from photos uploaded by users.

But, said the judge, the text of the law does not support Google’s contention.

“Rivera and Weiss nowhere argue that the photograph itself is the biometric identifier,” the judge wrote. “Indeed, if Google simply captured and stored the photographs and did not measure and generate scans of face geometry, then there would be no violation of the Act.”

The judge indicated he would set a discovery scheduled at the case’s next hearing.

Google is represented in the action by the firm of Perkins Coie LLP, of San Francisco, Seattle and Chicago. 

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Organizations in this Story

Google
1600 Amphitheatre Pkwy
Mountain View, CA 94043

Lite DePalma Greenberg LLP
211 West Upper Wacker Drive
Chicago, IL 60606

Carey Rodriguez Milian Gonya, LLP
1395 Brickell Avenue
Miami, FL 33132

Ahdoot & Wolfson, PC
1016 Palm Avenue
West Hollywood, CA 90069

Perkins Coie
131 S Dearborn St
Chicago, IL 60603

U.S. District Court for the Northern District of Illinois
219 S Dearborn St
Chicago, IL 60604

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