April 3, 2017 -
On Friday, a putative class of consumers said Google cannot stay proceedings to appeal parts of a federal judge’s recent refusal to dismiss claims that allege its face-mapping technology violates an Illinois state biometrics law, according to a report by Law 360.
The move comes just over three weeks after Google requested that Judge Edmond Chang reverse his decision allowing the class-action lawsuit accusing Google of violating the Illinois Biometric Information Privacy Act (BIPA), to proceed.
The tech giant argued that the question of whether BIPA actually applies to information derived from face geometry scans derived from photos ought to be reviewed immediately by the Seventh Circuit.
However, the putative class said Google’s request for an interlocutory appeal is unconvincing, particularly based on the information Judge Chang provided in his decision to reject the dismissal of the case.
“Defendant says the court should certify the question for interlocutory appeal and stay the proceedings pending appeal,” the putative class wrote. “Defendant says so without citing to any conflicting or contradictory decisions on the question. In fact, defendant says so without demonstrating any genuine difference of opinion at all on the question. Defendant’s sole basis for the motion — the company’s subjective belief that its interpretation of BIPA is correct and the court’s is wrong — is plainly insufficient to obtain certification of an immediate appeal under [appeals law].”
In its motion last week, Google questioned whether Judge Chang had properly defined “biometric identifier” in meeting the criteria for certifying a non-final ruling for immediate appeal.
Under the BIPA, organizations collecting biometric data are obligated to notify people about the practice before they begin to gather data, and to post a timeline for deleting the data.
The statute defines biometric identifier as “any personal feature that is unique to an individual, including fingerprints, iris scans, DNA and ‘face geometry,’ among others,” and biometric information as “any information captured, converted, stored, or shared based on a person’s biometric identifier used to identify an individual.”
On February 27, Judge Chang issued a ruling that allowed Illinois residents Lindabeth Rivera and Joseph Weiss to proceed with their class-action lawsuit against Google for allegedly using facial recognition to create face templates from photographs — which is a violation of BIPA.
Weiss said that he had uploaded images of himself to his Google Photos account that the company subsequently used, while Rivera claimed that she does not have Google Photos and that another person uploaded the photos of her that were used by Google.
Google argued that the alleged face templates are not considered “biometric identifiers” based on definitions outlined in the BIPA because they are extracted from photographs, that the plaintiffs had not provided sufficient evidence that Google violated the BIPA within Illinois, and that the statute violates the dormant commerce clause of the U.S. Constitution in terms of the BIPA covering its Google Photos technology.
The putative class responded Friday by stating that Google was simply “grasping at straws” in its request for an interlocutory appeal, particularly when the firm referenced several pages in Judge Chang’s order as so-called proof of a substantial foundation for differing opinions.
“That is preposterous,” the plaintiffs said. “The length of the opinion is attributable to the court’s conviction, not hesitation, in its conclusion that BIPA applies to face scans collected from photographs no less than face scans collected in-person or from any other source … Accordingly, the length of the opinion represents the depth of the court’s disagreement with defendant’s interpretation, not any indecision over the issues or struggle to justify the result.”