Shutterfly settles Illinois privacy class action over facial recognition tech

By Rebecca Campbell | May 9, 2016

CHICAGO – Shutterfly has settled a class action suit alleging the online photo sharing site violated Illinois privacy laws by creating a system permitting photos to be stored and searched using facial recognition technology.

The amount of the settlement has not been disclosed.

The plaintiff, Brian Norberg, had filed suit claiming the Redwood City, Calif.-based Shutterfly and its Palo Alto, Calif.-based subsidiary, ThisLife, had systems that relied upon various “biometric identifiers” to identify the faces of people in the uploaded photos, essentially telling who is who in the pictures, recognizing their gender, age, race, and location.

However, because Shutterfly failed to secure the permission of those tagged in the photos and store their biometric information, the system broke the Illinois law, the complaint alleged.

According to Norberg his likeness was first stored without his consent in February 2015 when a Shutterfly user created a wedding invitation that included his image. Around five months later, more photos of Norberg’s likeness were subsequently uploaded to ThisLife and Shutterfly’s program allegedly automatically recognizing Norberg’s face from the template it had created, encouraging the person who uploaded the photos to tag Norberg, and in the process attaching Norberg’s name to his facial template without his consent.

Shutterfly’s motion to dismiss Norberg’s complaint was rejected on Dec. 29 by U.S. District Judge Charles R. Norgle.

As the Illinois BIPA “prohibits private entities from collecting biometric information from individuals absent express consent…following a written disclosure,” Norgle said Norberg’s allegations were sufficient to dismiss Shutterfly’s dismissal attempt.

Just about four months since that ruling, however, Shutterfly and Norberg have settled the case for an undisclosed amount. 

Linn Freedman, a partner at Robinson+Cole who followed the case, said she is not surprised that a settlement was reached.

“My sense is that the parties agreed to a settlement to terminate the litigation, which is prolonged and costly,” she said. “Since it is the first known settlement under the law, it is important for Shutterfly and other companies using facial recognition technology to keep the terms confidential as the settlement does not admit any liability.”

Facebook is currently battling a similar case in California, in which plaintiffs alleged the social media company collected facial data through its facial recognition software.

Freedman, though, doesn’t believe others will necessarily follow Norberg. 

“Because the issue is somewhat unsettled, I don’t anticipate that there will be other suits that follow until there is definitive guidance,” she said.

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