A new lawsuit accuses the parent company of Twitter of violating Illinois' biometrics privacy law when its anti-porn screening programs scan the physical features of people included in photos uploaded to the social media platform.
Mark Martell, on behalf of himself and others, filed a new class action lawsuit against X Corp., the parent company of Twitter, on July 11 in Cook County Circuit Court. Martell is accusing X Corp of alleged violations of the Illinois Biometric Information Privacy Act, as it relates to facial recognition scans performed on all photo uploads to Twitter.
XCorp utilizes a software called PhotoDNA to detect explicit images. PhotoDNA, developed by Microsoft, creates a unique digital signature, known as a “hash," of an image.
Twitter then allegedly compares PhotoDNA's image against hashes of other photos to find copies of the same image.
Martell is alleging that Twitter, using PhotoDNA software, captures and retains biometric data from user photos without first obtaining express consent or informing the user of how that data would be used, retained and ultimately destroyed.
The BIPA law allegedly requires that private entities, such as Twitter, obtain informed written consent from individuals before acquiring their biometrics. Specifically, the law allegedly requires companies to inform "the subject . . . in writing (1) that a biometric identifier or biometric information is being collected or stored; (2) of the specific purpose and length of for which information is being captured, collected, stored, and used; and (3) receives a written release executed by the subject of the biometric identifier or biometric information . . . .”
As recently as 2021, a New York City-based independent magazine Paper Magazine declared that Twitter was experiencing a "Porn Golden Age", describing an entire subculture called Porn Twitter. According to Reuters, 13% of all Twitter posts have been considered "not safe for work" content, including nude videos, pornography and explicit photos.
According to the complaint, Twitter has used programming to police for such NSFW material since at least 2015.
In Illinois, class action lawsuits under the BIPA law have piled into court by the thousands since 2015. Primarily, such lawsuits have lodged claims against employers over worker fingerprint scans.
However, a number of other class actions have targeted big tech companies, including the companies operating many of the world's biggest and most popular social media platforms. Meta, the parent company of Facebook, for instance, famously agreed to pay $650 million to settle a class action against them over face scans conducted on uploaded photos. Google also agreed to pay $100 million to settle similar claims against them.
And the lawsuits and settlements keep coming. Meta has agreed again to pay $68.5 million to settle a class action over user face scans, this time over claims it conducted improper scans of photos uploaded to Instagram, which Meta also owns and operates.
Under BIPA, plaintiffs are allowed to demand damages of $1,000-$5,000 per violation in which someone’s biometrics are scanned, dating back over a five year period from the time the lawsuit is filed. Businesses have warned that, without relief from courts or changes to the law from legislators, the Illinois Supreme Court's rulings will result in economic devastation from "astronomical damages" that put entire companies out of business, over technical violations of the law that resulted in no concrete harm to workers.
Plaintiffs in the new Twitter case are seeking damages of up to $5,000.00 for each violation of BIPA, court costs and legal fees.
When multiplied over millions of Twitter users in Illinois, damages could quickly climb into the many millions or even billions of dollars, under the rules laid down by the Illinois Supreme Court.
Plaintiffs are represented by attorneys Carl V. Malmstrom, of the firm of Wolf, Haldenstein, Adler, Freeman & Herz, of Chicago; and Philip L. Fraietta, Joseph I. Marchese, Matthew A. Girardi and Julian C. Diamond, of Bursor and Fisher, of New York.