Google to argue online photo service is not subject to Illinois biometric privacy law

Google to argue online photo service is not subject to Illinois biometric privacy law

The use of facial recognition on photos of people, rather than the people themselves, is not covered by the Illinois Biometric Information Privacy Act (BIPA), Google will argue to a federal appeals court, MediaPost reports.

Court filings in the 7th Circuit Court of Appeals outline the argument, which Google hopes will shut down an appeal of a suit that was dismissed for lack of injury at the end of 2018, before being revived by a State Supreme Court ruling that procedural violations constitute harm. Google will argue in the “cross-appeal” that the suit should have dismissed due to lack of applicability, rather than lack of harm.

BIPA specifically deals with photos, and does not include information derived from photos in its definition of “biometric information.” District Court Judge Edmond Chang previously ruled against the same argument, however, saying that regardless of the process behind them, scans of facial geometry are protected under the law.

One of the two plaintiffs uploaded photos to Google himself, while the other says she does not have a Google Photos account, and that images of her were uploaded by someone else.

Google also intends to argue that BIPA cannot constitutionally regulate online photo services, as such a service is interstate commerce, according to MediaPost, and as such can only be regulated by Congress. Google has also made the argument that including photo services in BIPA is unconstitutional in lobbying to have the law amended.

There have been more than 200 BIPA class actions filed in the past two years alone, and more are coming in the wake of the State Supreme Court’s decision in Rosenbach v. Six Flags, according to a commentary by privacy lawyers Jeffrey N. Rosenthal and Thomas F. Brier Jr. of Blank Rome published in The Legal Intelligencer. Rosenthal and Brier call the Rosenbach decision a blow to Google and Facebook, which is currently fighting its own BIPA suit.

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