Snapchat, the popular "disappearing image" messaging social media corporation, was free to enjoy this past Labor Day weekend due to a voluntary dismissal of a biometric privacy class action. On August 30, 2016, the class filed its motion to dismiss in the U.S. District Court for the Central District of California. 1 Although the case is dismissed for the time being, this is not the first time social media platforms and tech companies have been sued for using "face-mapping" or "facial recognition" technology in violation of the Illinois Biometric Information Privacy Act ("BIPA"). Snapchat, Facebook, and Google have all faced BIPA suits for allegedly collecting and storing information gathered from facial recognition technology.
BIPA was enacted in 2008 to protect Illinois residents' biometric information from being used by private entities, such as corporations. 740 ILCS 14/10.
Biometric information is any information, regardless of how it is captured, converted, stored, or shared, that is based on a biometric identifier. Id. A biometric identifier is a retina or iris scan, fingerprint, voiceprint, or scan of hand or face geometry. Id. Biometric identifiers do not include things such as photographs, demographic data, tattoo descriptions, or physical descriptions such as height, weight, hair color, or eye color. Id.
Private entities cannot obtain your biometric information unless they 1) inform you in writing that your biometric information will be collected or stored, 2) inform you in writing of the specific purpose and length of time they will use the biometric information, and 3) receive a written release from you for the collection of the biometric information. Id. at 14/15.
Use of biometric information appears to be the way of the future, as many national corporations selected Chicago and other locations in the state as pilot testing sites for new apps using biometric-facilitated financial transactions, such as "finger-scan technologies at grocery stores, gas stations, and school cafeterias." 740 ILCS 14/5 (b).
The Illinois legislature noted that the majority of the public is wary of the use of biometrics when tied to their finances and other personal information. 740 ILCS 14/5(d).
This same wariness is shared by social media and search engine users.
In May 2015, Illinois Facebook users brought a class action against the social networking site. 2 Facebook users alleged that the social media corporation collected, stored, and used biometric information for more than one billion users without any written notice or informed written consent, including millions of Illinois residents, when it began implementing its facial recognition technology— the "Tag Suggestion" feature.
If you are a Facebook user, you may have uploaded a photo to your profile and seen the prompt from the Tag Suggestions feature suggesting that you "tag" the person in the photograph with his or her appropriate name. The class alleges that the Tag Suggestion feature compares the faces of any individual in that photo to face templates in a Facebook database, thus violating BIPA.
Likewise, Illinois Google users brought a class action suit against the search engine corporation in March 2016. 3 Illinois Google users alleged that Google violated BIPA when it used facial recognition technology. The class argues that Google created, collected, and stored highly detailed face geometry maps— called "face templates" — in conjunction with its cloud-based Google Photos service on Droid phones.
Snapchat was also met with a BIPA class action brought by Illinois residents in May 2016. Snapchat users alleged that the social media app also created, collected, and stored "tens if not hundreds of millions of" face templatesfrom users in Illinois by using sophisticated facial recognition technology that extracts and analyzes data from the points and contours of users' faces when they use the Snapchat "Lenses" feature.
If you use Snapchat, you have more than likely encountered the Lenses feature— it allows users to add real-time special effects and sounds to their "snaps," photos, or videos that "disappear" after about 10 seconds, or 24 hours if they are part of several snaps comprising a user's "story."
Snapchat, Facebook, and Google are just some of the social media corporations facing BIPA suits. 4 We must face it- biometric facial recognition litigation may be picking up. While a wave of class actions against these corporations is originating in Illinois, time will tell if suits will pop up in other states. Currently, Texas and Illinois are the only states with legislation on the books addressing commercial biometric capture. States like Alaska, California, and Washington have biometric legislation pending. Businesses will need to be aware of biometric statutes before they consider using biometric-facilitated technology.
Footnotes
4 Shutterfly was also sued under BIPA. Norberg v. Shutterfly Inc. and ThisLife LLC, U.S. District Court for the Northern District of Illinois, Case No. 1:15-cv-05351.
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