CHICAGO — A federal judge has ordered most of a biometrics class action targeting Amazon into arbitration.
The lawsuit centers on Amazon’s Alexa, a voice-activated artificial intelligence platform, and the Seattle-based company’s alleged practice of using Alexa to record “voiceprints.”
Attorneys with the firms of Taxman Pollock Murray & Bekkerman, of Chicago, and KamberLaw, of Chicago and Denver, filed the complaint in June 2019 in Cook County Circuit Court. The complaint lists three named plaintiffs, identified as Bennett Wilcosky and Michael Gunderson, and Gunderson’s child, identified only as E.G., who was three years old at the time.
The complaint asserts Alexa and Amazon Echo recording technology violates the Illinois Biometric Information Privacy Act, which forbids the “collection, retention, capture or purchase of biometric identifiers,” including people’s speech and speech patterns. According to the complaint, Alexa begins recording when it hears a user ask a question, and those recordings can capture and store voice data of anyone who speaks within range.
Amazon removed the complaint to federal court, but the plaintiffs said they lacked standing to sue in federal court and sought to send the case back to Cook County court, which is considered by many to be a more plaintiff-friendly venue.
In an opinion issued Feb. 5, Judge Franklin Valderrama agreed with Amazon that the case belongs in federal court. Then, the judge also granted part of Amazon’s motion to send the matter to arbitration.
As in thousands of other lawsuits under Illinois’ Biometrics Information Privacy Act (BIPA), the plaintiffs alleged Amazon failed to obtain consent and provide various notifications regarding data collection. Like other federal judges, Valderrama interpreted this as a claim for actual injury, which, under U.S. Supreme Court precedent, means the claims can belong in federal court.
Amazon further argued its conditions and terms of use agreements contain arbitration provisions allowing Valderrama to punt the entire action out of court. He resisted, denying without prejudice a motion to compel arbitration for the claims involving the minor and directing the parties to file supplemental briefs concerning whether the case could move forward.
While the plaintiffs said they didn’t agree to the conditions of the user agreements, Amazon lawyer Brian Buckley said acceptance of those terms is mandatory to buy products and services like Alexa.
“Depending on whether the purchase is made in a browser or through Amazon’s shopping application, the notice is located directly above or directly below the ‘Place your order’ button, such that it is clearly visible when viewing the page," Valderrama wrote.
The company said Wilcosky created an Amazon account in January 2014, while Gunderson’s dated to November 1998, with both making purchases as recently as August 2019. Valderrama said neither offered sufficient evidence the company failed to notify them of its arbitration provisions. Similar reasoning applied to the company’s terms of use contracts.
Gunderson, Valderrama wrote, “indisputably agreed” to service terms, having activated Alexa services in November 2015 and registering almost two dozen devices. Wilcosky’s acceptance of service terms is less clear, Valderrama continued, as Amazon presented no evidence Wilcosky had constructive notice of the terms, even though he registered four Android devices with Alexa. Still, his acceptance of conditions of use terms when making Amazon purchases online is sufficient to trigger the arbitration provision.
Since the plaintiffs didn’t argue their claims fall outside the scope of arbitration, Valderrama said, they conceded that question to the decision of the arbitrator.
Turning to the debate of whether the claims of E.G., as a minor, should be compelled to arbitration, Valderrama said the question rests on whether the court should use Washington or Illinois law and ordered Amazon to submit briefs concerning which state should prevail. He further rejected Amazon’s arguments that E.G. is bound by a parent’s decision or that the child’s claims are inherently inseparable from the adult’s.
Amazon is to file its brief by Feb. 19, the plaintiffs are to respond by March 5.
Amazon is represented in the action by attorneys Elizabeth B. Herrington, Alex D. Berger and Tyler Z. Zmick, of the firm of Morgan Lewis & Bockius LLP, of Chicago.
Plaintiffs are represented by attorneys Marc A. Taxman, Bradley N. Pollock, Sean P. Murray, Gerald J. Bekkerman and Brennan B. Hutson, of the Taxman Pollock firm; and by attorneys Scott Kamber, Michael Aschenbrener and Adam York, of KamberLaw.