A federal judge in Washington has ruled Amazon may be sued, but Microsoft may not, for allegedly breaching Illinois biometric protection law, saying plaintiffs plausibly alleged Amazon profited after using facial scans without consent, but plaintiffs could not show the same for Microsoft.
The decisions were recently laid down by Judge James Robart, of U.S. District Court for the Western District of Washington. Retail giant Amazon and technology titan Microsoft are both based in Washington state. Illinois residents Steven Vance and Tim Janecyk lodged class actions in 2020 against the companies, citing alleged violations of the Illinois Biometric Information Privacy Act (BIPA).
In the Amazon action, plaintiffs said they uploaded their photos to the photo-sharing website Flickr, with the photos making their way from Yahoo to IBM, where faces of people in the images were scanned. Amazon then obtained the scans to improve its facial recognition products, according to court papers. Plaintiffs alleged they were never informed their photos were to be so used.
Scott Drury, formerly of Loevy & Loevy
Plaintiffs claimed Microsoft similarly acquired the scans without telling plaintiffs, much less seeking their consent.
Amazon and Microsoft asked Judge Robart to throw out the suits, which he did in Microsoft's case. As an example of what was riding on Robart's decision, Facebook and Google have made settlements in BIPA suits of $650 million and $100 million, respectively.
Robart said he found no evidence Microsoft did more than briefly review some of the photos.
In addition, plaintiffs failed to show Microsoft scored a benefit of any kind, much less a monetary benefit, or that Microsoft harmed plaintiffs, according to Robart.
The judge also determined plaintiffs did not demonstrate any conduct by Microsoft that took place "primarily or substantially in Illinois," as required by BIPA.
In the case of Amazon, Robart said there is a plausible argument Amazon integrated plaintiffs' images into its merchandise, which in turn "improved Amazon's products."
Robart pointed out Amazon has many uses for facial scan technology, notably its Rekognition product, which lets users match facial images through visual geometry. Among other customers, police use Rekogntion in criminal investigations.
"Plaintiffs’ factual allegations allow for the reasonable inference that selling Amazon's products necessarily shares access to the underlying biometric data in exchange for some benefit to Amazon," Robart said.
Plaintiffs are represented by Scott Drury, of Drury Legal in suburban Highwood, as well as by Nicholas Lange, Kenneth Held, Katrina Carroll, James LaMarca and Gary Lynch, of the Chicago and Pittsburgh offices of Lynch Carpenter. Until Oct. 4, the Chicago firm of Loevy & Loevy also represented plaintiffs.
Drury formerly worked with the Loevy firm. He and his former firm are now locked in a tussle in Chicago federal court over whether the firm or Drury, individually, should be allowed to represent clients in a BIPA-related class action against facial recognition firm Clearview A.I. At stake in that court fight are potentially millions of dollars in attorney fees from a potential settlement with Clearview.
Loevy & Loevy have accused Drury of attempting to cut them out of the settlement. Drury said he "strongly disputes" those claims by the Loevy firm, and will elaborate more on his counterarguments in a response to be filed in early November.
Amazon is defended by Benjamin Kabe, Elizabeth Herrington, Gregory Fouts, Michael Fakhoury and Phillip Wiese, of Morgan, Lewis & Bockius. Amazon's legal team has also included Jaime Allen and Kenneth Payson, of Davis, Wright & Tremaine.
Microsoft is defended by Elizabeth Herrington and Phillip Wiese, of the Chicago and San Francisco offices of Morgan, Lewis & Bockius. Stephen Rummage and Xiang Li, of the Seattle firm of Davis, Wright & Tremaine, have also defended the company.