Samsung has beaten, for now, a class action lawsuit accusing the tech giant of allegedly violating Illinois' biometrics privacy law by allegedly wrongly scanning the faces of people captured in photos stored on Samsung devices using their Gallery photo and video app.
In the ruling, Jenkins conceded the Gallery app scans faces in photo. But she said that doesn't, by itself, mean Samsung has violated Illinois' stringent privacy law.
"Here, Plaintiffs do not allege the App's technology is capable of identifying a person's identity," Jenkins wrote. "Rather, Plaintiffs allege only that the App groups unidentified faces together, and it is the Device user who (has the option to) add names to the faces.
"The Court concludes these allegations are insufficient to show that the Data constitutes either a biometric identifier or biometric information."
Jenkin's dismissal was without prejudice, meaning she will give the plaintiffs one more opportunity to amend the lawsuit to address the shortcomings she identified in her ruling and try again to move the case forward.
The lawsuit was first filed in Cook County Circuit Court by attorneys Keith J. Keogh and Theodore H. Kuyper and others with the firm of Keogh Law Ltd., of Chicago, on behalf of a group of potentially thousands of plaintiffs, and perhaps more.
The lawsuit was nominally filed on behalf of a then-11-year-old Champaign resident, identified only as G.T., and her "next friend," Liliana T. Hanlon.
They have since been joined by attorneys from the firm of Lowey Dannenberg P.C., of White Plains, New York, in a complaint filed on behalf of named plaintiffs Shimera Jones, LeRoy Jacobs, Balarie Cosby-Steele, John DeMatteo, Richard Maday, Mark Heil, Allison Thurman and Sherie Harris.
The lawsuit claims Samsung's Gallery app, installed on Samsung Android smartphones, improperly scans the faces of people pictured in photos and videos stored on the device, allegedly without first securing written consent or without providing certain notices, as allegedly required under Illinois' Biometric Information Privacy Act (BIPA.)
The lawsuit was similar to thousands of other class actions filed against software companies, tech vendors, employers and others under the BIPA law since 2015. Those lawsuits all generally accuse companies of alleged unauthorized scans of people's so-called unique "biometric identifiers," including fingerprints, "voice prints" and facial geometry, among others.
Just as the other lawsuits, the suit against Samsung also seeks a potentially massive payday.
Under the BIPA law, plaintiffs are allowed to demand damages of $1,000-$5,000 per violation. The Illinois Supreme Court has interpreted the current version of the law to define individual violations as each time a company's software scans someone's biometric identifier.
So, when an unknown number of such scans are multiplied across potentially thousands of plaintiffs, potential damages could quickly soar into the many millions or even billions of dollars.
Similar class actions against social media giants Meta - the parent company of Facebook and Instagram - and Google over those companies' scans of uploaded photos have resulted in attention-grabbing settlements worth hundreds of millions of dollars.
Illinois lawmakers have passed legislation to rein in the potential for catastrophic financial damages and massive windfalls for trial lawyers who bring the lawsuits. However, that legislation has not yet been signed by Gov. JB Pritzker.
In the meantime, the potential for such potentially massive paydays has spurred a growing mountain of lawsuits under BIPA throughout Illinois.
Tech company and Samsung rival Apple, for instance, is facing a similar lawsuit in southern Illinois federal court, also accusing that company of wrongly scanning people's faces in photos uploaded through their Apple devices.
However, while Apple continues to defend against that lawsuit, Judge Jenkins indicated an Illinois appeals court ruling from 2022 in a different BIPA lawsuit against Apple, filed in Cook County court.
In that case, an Illinois state appeals panel said a similar lawsuit couldn't stick against Apple, because it was Apple users themselves who determined when and how any of their information was scanned and collected, and Apple was never in possession of the disputed data.
Similarly, in the Samsung Gallery app class action, Jenkins agreed with Samsung that the company never actually was "in possession" of people's biometrics data.
"Samsung controls the App and its technology, but it does not follow that this control gives Samsung dominion over the Biometrics generated from the App, and plaintiffs have not alleged Samsung receives (or can receive) such data," Jenkins wrote.
Samsung has been represented in the action by attorneys Mark H. Boyle, of the firm of Donohue Brown Mathewson & Smyth, of Chicago; Randall W. Edwards, Matthew D. Powers and Ashley M. Pavel, of O'Melveny & Myers, of San Francisco and Newport Beach, California.