Everyone who ever spoke to an Alexa device anywhere in Illinois could be included in a potentially mammoth class action lawsuit against Amazon, potentially worth billions of dollars under Illinois' biometrics privacy law, a federal judge has ruled.
And this decision could not only leave tech and online commerce giant Amazon on the hook for an astronomical payout, but could leave Illinoisans cut out of the use of voice-activated smart technology, like Alexa, or similar future tech, Amazon has warned.
Scott Kamber, of KamberLaw
| PLI.edu/
First filed in Cook County Circuit Court in 2019, the lawsuit claims that Amazon should be made to pay anyone in Illinois who has used Alexa, because the Alexa system records users' voices and can learn to identify users by analyzing and storing their so-called "voiceprint."
The lawsuit was filed by attorneys from the firms of Taxman Pollock Murray & Bekkerman, of Chicago, and KamberLaw, of Chicago and Denver, on behalf of named plaintiffs Michael Gunderson, Jason Stebbins, Julia Bloom Stebbins and Christopher Block.
According to the complaint, all of the plaintiffs but Bloom Stebbins are considered so-called enrolled users of Amazon's Alexa system, or owners of Alexa devices, who agreed to the terms of Amazon's Alexa user agreement.
Bloom Stebbins allegedly does not own an Alexa device, nor enrolled to use the devices, but spoke to an Alexa device at Jason Stebbins' home, the lawsuit said.
The Alexa A.I. program performs web searches and other web-connected tasks in response to user voice requests. To access those services, users must begin their requests by using the so-called "wake word," which is "Alexa."
The Alexa program is available on thousands of devices, but primarily on Amazon's Echo smart speaker.
According to industry data, 71.6 million Americans use Alexa-equipped devices, and Alexa-equipped devices hold a 66% share of the market for so-called "smart technology" in the U.S.
The lawsuit asserts Amazon's use of this learning tech in Alexa violates the Illinois Biometric Information Privacy Act.
Enacted in 2008, the law has become a favorite tool of a growing cadre of trial lawyers, who have used the BIPA law since 2015 to bring a growing mountain of thousands of class action lawsuits against businesses of all kinds in Illinois who scan or store the so-called biometric identifiers of customers or employees.
These biometric identifiers can include such unique and immutable identifying characteristics as someone's fingerprints, retinas or so-called "facial geometry."
The bulk of the litigation to date has taken aim at employers, who use fingerprint scans to track employee work hours in place of a traditional punch clock, or to secure access to sensitive areas in workplaces, such as medication lockers in hospitals, secured rail yards, or cash rooms in retail stores.
However, the law has also been famously used to bring high profile, big dollar class actions against tech companies. Lawsuits under the BIPA law against Facebook and Google, for instance, accused the companies of improperly scanning the faces of people pictured in photos uploaded to their photo sharing platforms.
Those lawsuits, in turn, generated headlines nationwide, after the tech titans agreed to pay $650 million and $100 million, respectively, to settle those claims.
Further settlements are pending against Facebook's parent, Meta, over Instagram and against TikTok's parent ByteDance, also over alleged improper user face scans.
The lawsuits almost always center their claims on the BIPA law's so-called notice and consent provisions, which require companies to collect consent from users and provide notices concerning how their scanned biometric data will be stored, used, shared and ultimately destroyed.
The power of the law, however, has come from a series of rulings from the Illinois Supreme Court since 2019.
Under the law, BIPA plaintiffs are allowed to demand damages of $1,000 or $5,000 per violation of the law. However, the state high court has ruled the law can be interpreted to define individual violations as each time a company scans a biometric identifier from a worker, customer or device user without explicit notice or consent, over the five year period preceding the lawsuit.
Further, the court has ruled that plaintiffs don't need to prove they were ever actually harmed by the collection of the data, only that the technical provisions of the law may have been violated.
In the case against Amazon, the plaintiffs similarly alleged Amazon did not ask them for consent or provide notice, as required by the BIPA law, before recording, analyzing and storing their voice patterns.
And they are requesting the usual BIPA damages. Thus, when multiplied across millions of potential users, each using Alexa devices multiple times per day, potential damages could quickly climb into the billions of dollars, should the case go to trial and a jury rule in favor of the plaintiffs.
Plaintiffs' lawyers typically take about a third of all funds paid by defendants under any judgment or settlement of such BIPA class actions.
In response to the plaintiffs' claims, Amazon asserted registered Alexa owners and users actually do give consent to the recordings.
Amazon argued its Alexa user agreement clearly informs users that Alexa will record their interactions, and is designed to "learn" to recognize their voice and link it to their identity.
Amazon argued users' "voiceprints were collected in circumstances under which any reasonable consumer should have known that his or her biometric information was being collected."
Amazon further argued that non-registered owners and users can't sue under BIPA, because the Alexa system never links their recorded voice to any specific person, but merely records their voice to compare it against known or registered users.
Judge Valderrama, however, sided with plaintiffs, saying Amazon's user agreement is not enough, because it does not "satisfy" BIPA's specific notice and consent requirements.
"... These disclosures do not inform enrollees that Amazon would collect 'biometric identifiers' or Voice ID Plaintiffs’ unique biometric information as defined by BIPA," Valderrama wrote.
The judge said he would also allow non-registered users to join in the class action, as well, even if they only spoke to Alexa one time, on a device in another person's home.
Valderrama said, at this stage of the proceedings, plaintiffs need only show their voice may have been recorded by Alexa at any point without notice or consent, as allegedly required by BIPA, to press forward with potentially massive claims.
While the judge noted the claims only "barely" pass the test, Amazon's inability to connect that recorded voice with any actual person doesn't matter under BIPA, the judge said.
The judge noted courts have ruled that the BIPA law does not require any specific "relationship between the collector of biometric information" and the person who is suing.
Rather, the judge said the plaintiffs properly assert that Amazon's system may violate the law simply by allowing non-enrolled users to interact with Alexa without first providing expressed consent that satisfies BIPA's requirements. To allow Amazon to escape their legal claims, the judge said, could allow Amazon to "rewrite" the BIPA law.
Amazon has argued that allowing Bloom Stebbins to lead a class action on behalf of millions of people who may have interacted with an Alexa system in Illinois would actually rewrite the BIPA law, by stretching it "far beyond its intended scope."
Allowing the lawsuit to continue, Amazon warned, would "place Amazon and other technology providers in an impossible position, and effectively outlaw most biometric technology in Illinois.”
In short, Amazon warned Illinoisans could ultimately be cut off from future technology, like Alexa, as allowing such class actions as this case could "effectively outlaw most biometric technology in Illinois."
Judge Valderrama, however, dismissed those concerns as a "doomsday scenario."
Plaintiffs are represented by attorneys Michael Aschenbrener, Scott A. Kamber and Deborah Kravitz, of KamerLaw, and Gerald J. Bekkerman, Bradley N. Pollock, Sean P. Murray and Marc A. Taxman, of Taxman Pollock Murray & Bekkerman.
Amazon is represented by attorneys Elizabeth B. Herrington and Gregory T. Fouts, of Morgan Lewis & Bockius, of Chicago.