Google Can’t Avoid Privacy Suit Over Biometric Face Prints

Feb. 28, 2017, 3:12 PM

By Joel Rosenblatt, Bloomberg News

Google users who say the company’s facial recognition technology flouts their privacy rights won the first round of a court fight.

A federal judge in Chicago ruled Monday that the world’s largest search engine must face claims that it violated the privacy of millions of users by gathering and storing biometric data without their consent. Facebook Inc. is fighting similar claims in San Francisco federal court.

U.S. District Judge Edmond E. Chang’s decision to let the class-action case proceed might leave Google on the hook under a unique Illinois law for fines of $1,000 to $5,000 each time a person’s image is used without permission. A court victory for consumers could lead to restrictions similar to those in Europe and Canada on Google’s use of biometrics in the U.S.

Courts have struggled over what qualifies as an injury to pursue a privacy case in lawsuits accusing Facebook and Google of siphoning users’ personal information from e-mails and monitoring their web-browsing habits. Suits over selling the data to advertisers have often failed.

Alphabet Inc.’s Google contended the images at issue are excluded from Illinois’ Biometric Information Privacy Act because they are derived from photographs. The digital face prints wouldn’t qualify as “biometric identifiers” under the law unless they were obtained from in-person scans, the company said in a court filing.

Chang rejected that argument.

‘Face Geometry’

“A photograph is just that -- a photograph, not a scan of face geometry, which is a set of biology-based measurements,” he wrote.

“If Google simply captured and stored the photographs and did not measure and generate scans of face geometry, then there would be no violation of the act,” the judge said.

Google spokesman William Fitzgerald didn’t immediately respond to a request for comment on Monday’s ruling after regular business hours.

The judge also dismissed Google’s argument that the Illinois law violates interstate commerce protections in the U.S. Constitution by regulating conduct beyond the state’s boundaries. The company said it can’t always know whether a photo was taken in Illinois, or has some connection to the state.”

Lawyers for the users said that to comply with the Illinois law, the company must stop using its scanning software to catalog the facial geometry of individuals in photographs that are uploaded within the state to the company’s cloud-based Google Photos.

The cases are Rivera v. Google, 16-cv-02714, and Weiss v. Google Inc., 16-cv-02870, U.S. District Court, Northern District of Illinois (Chicago).

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