Samsung has for years engaged in “illicit harvesting” of facial scans of everyone who has ever had their photo taken on Samsung Android device, in violation of Illinois’ biometrics privacy law, a new class action lawsuit asserts.
Attorneys with the firm of Keogh Law filed suit in Cook County Circuit Court against Samsung Electronics America Inc., the U.S.-based manufacturer and distributor of smartphones, tablets and apps bearing the Samsung name.
The lawsuit was filed on behalf of potentially millions of Illinois residents, led by two named plaintiffs identified in the complaint only as G.T., a minor, and G.T.’s parent, identified only as Jane Doe. Both G.T. and Jane Doe are identified in the complaint as residents of downstate Champaign.
Keith Keogh
| Keogh Law
According to the complaint, Samsung’s Gallery app uses an algorithm that searches photos stored in a device’s photo library, looking for human faces. The app then allegedly scans those faces, creating templates “based on geometric attributes such as distance between the eyes, the width of the nose, and other features.”
The scans are allegedly conducted “for every face detected in the photographs stored on the user’s Samsung Device,” whether the photo is of the user or of anyone else, including minors, according to the complaint.
Those “face templates” are then allegedly stored in the device’s solid state memory, which allegedly will outlast every other part of the Samsung Android device. The data allegedly could still be extracted at a later date, according to the complaint.
The app allegedly uses the data to “organize and sort photos based upon the particular individuals who appear in the photos … by comparing the face template of individuals who appear in newly-stored photos against those already saved in the facial database.”
According to the complaint, the facial template creation process occurs automatically “without the user’s involvement or consent whenever a new photograph is stored on a Samsung Device.” Further, the complaint asserts the facial recognition software cannot be disabled by users, and there is no way for Samsung device users to “opt out.”
Since the facial recognition software cannot be turned off by users, and is done without the users' knowledge, the complaint said, the camera feature of the device cannot be used without “the collection of Biometrics.” And the terms of the user agreement allegedly mean Samsung continues to own all of the data collected, according to the complaint.
According to the lawsuit, Samsung’s facial recognition system has run afoul of Illinois state law for years.
Specifically, the complaint asserts, Samsung did not obtain consent from Illinois users before scanning their photos, nor did the company provide notices to consumers concerning the purposes of conducting and collecting the facial scans, nor how Samsung intended to use, store, share and ultimately destroy the scanned data.
These alleged failures allegedly violate the Illinois Biometric Information Protection Act (BIPA). Enacted in 2008, BIPA was ostensibly created to help protect Illinois residents from the risk of data breaches or other failures to control Illinois residents’ so-called biometric identifiers, such as fingerprints, retinal scans and facial geometry.
Since about 2015, plaintiffs lawyers have used the law to mount an ever-growing campaign of class action lawsuits against a host of businesses, aimed primarily at employers and tech companies, like Samsung.
The BIPA law gives plaintiffs the ability to demand damages of $1,000-$5,000 per violation, potentially putting companies on the hook for many millions or even billions of dollars in damages from BIPA-related suits.
Facebook, for instance, agreed to pay more than $600 million to settle a class action over its so-called “face tagging” software, which scanned and stored face templates of people depicted in photos uploaded to their platform.
The complaint against Samsung only estimates the number of people who could potentially be in line for a payout could reach into the “thousands,” but could number substantially more. According to information listed in the complaint, Samsung devices account for 30% of smartphones in the U.S., and 17.6% of all tablets.
Beyond that, the complaint notes, many people’s likenesses have been scanned and captured on Samsung devices, even though they themselves are not Samsung device users.
The complaint seeks to expand the action to include every Illinois resident who “had their biometric identifiers or biometric information collected, captured, received or otherwise obtained and/or stored by Samsung.”
The case was filed in Cook County court on Aug. 11.
Samsung removed the case to Chicago federal court on Sept. 20, seeking federal jurisdiction over the case.
Plaintiffs are represented by attorneys Keith J. Keogh, Theodore H. Kuyper and Gregg M. Barbakoff, of Keogh Law, of Chicago.
Samsung is represented by attorneys Mark H. Boyle and Emily E. Dory, of Donohue Brown Mathewson & Smyth, of Chicago.