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Google sued over facial recognition in photo sharing, latest tech giant to face class action in IL

By Scott Holland | Mar 5, 2016

Google sign

Google has become the latest titan of the digital age to face legal action under an Illinois law over the use of facial recognition technology and photo sharing.

Chicago resident Lindabeth Rivera filed a class action complaint March 1 in federal court in Chicago, accusing the Mountain View, Calif., tech giant of violating the Illinois Biometric Information Privacy Act. The complaint is similar to claims lodged in Chicago federal court in June and August 2015 against Shutterfly and Facebook, respectively, over their use of facial recognition technology in digital photo sharing and social media.

A case brought against Facebook over its “face-tagging” technology by an Illinois man who did not have a Facebook account was dismissed by a federal judge in January, saying the Chicago federal court was not the proper jurisdiction to try the case.

A different federal judge, however, declined to dismiss a similar class action against photo sharing service Shutterfly, saying the Chicago man who brought the case and was not a Shutterfly user had stated sufficient claims under the Illinois law to continue with the case. The judge had not yet certified a class in that case.

Under the 2008 BIPA, private entities are barred from obtaining and possessing biometrics without meeting certain conditions. 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 Rivera’s complaint, Google’s cloud-based Google Photos service 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. Google creates these templates using sophisticated facial recognition technology that extracts and analyzes data from the points and contours of faces that appear in photos taken on Google Droid devices and uploaded to the cloud-based Google Photos service.

“Each face template that Google extracts is unique to a particular individual, in the same way that a fingerprint or voiceprint uniquely identifies one and only one person,” the complaint said.

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 obligated to pay well more than $5 million to affected class members.

Google Photos uses face templates to organize and group photos based on the people pictured. Since the service functions without respect to whether any of the people have Google Photos accounts, Rivera’s complaint said, the company did not meet its obligation under BIPA guidelines to notify non-users “of the specific purpose and length of term for which their biometric identifiers or information would be collected, stored and used, nor did Google obtain a written release from any of these individuals. … Google does not have written, publicly available policies identifying their retention schedules, or guidelines for permanently destroying non-users’ biometric identifiers or information.”

Specifically, Rivera said a Google Photo user took 11 pictures of her in Illinois, which Google, “by automatically locating and scanning Plaintiff’s face, and by extracting geometric data relating to the contours of her face and the distances between her eyes, nose, and ears,” grouped the photos together and also used to recognize her gender, age, race and location.

In addition to class certification and a jury trial, Rivera asked the court to award BIPA’s statutory damages and attorney fees, as well as an order requiring Google to comply with the act.

Rivera’s attorneys are Katrina Carroll and Kyle A. Shamberg, of Lite DePalma Greenberg, of Chicago; Robert Ahdoot, Tina Wolfson and Brad King, of Ahdoot & Wolfson, of West Hollywood, Calif.; and David P. Miliam and Frank S. Hedin, of Carey Rodriguez Milian Gonya, of Miami, Fla.

The firms of Lite DePalma Greenberg and Carey Rodriguez Milian Gonya also represented the plaintiffs in the similar BIPA cases against Shutterfly and Facebook.

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Organizations in this Story

ShutterflyLite DePalma Greenberg LLPFacebookAhdoot & Wolfson, PCCarey Rodriguez Milian Gonya, LLPGoogle, Inc.