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
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
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
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
“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.