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Google argues for biometric privacy suit dismissal based on photo and interstate commerce exemptions

Google argues for biometric privacy suit dismissal based on photo and interstate commerce exemptions

Google is planning to show that Illinois’ Biometric Information Privacy Act (BIPA) does not apply to data taken from photographs, and that therefore a potential class-action suit against it should be dismissed, MediaPost reports.

Photographs themselves and data derived from photos are exempted from the definitions “biometric identifiers” and information by BIPA, though how exactly this is to be interpreted seems unclear, as courts have rejected arguments that biometrics derived from user photos are exempt. In a case involving Facebook, the exemption was interpreted as applying only to physical prints, not digital copies.

The suit was originally filed in U.S. federal court by a California man in February.

In papers filed by Google this week, the tech giant submitted its intention to argue that BIPA does not cover information collected from photographs, and also to shift the case to Illinois court. Decisions allowing digital photo-based BIPA suits to go ahead against Shutterfly and Facebook were both in federal court, and Google has already had a case ruled in its favor in Illinois court.

A District Court judge dismissed a case against Google at the end of 2018 on grounds that the suit lacked standing due to a failure to show an injury. That ruling was superseded by a State Supreme Court ruling that statutory violations of BIPA harm plaintiffs’ rights, establishing standing, and Google signaled its intention to argue the same photo exemption defense to a federal appeals court in that case last year. The case is being pursued concurrently in state and federal court.

Google is also planning to argue that the application of BIPA to action outside of Illinois violates the Constitution’s grant of control over interstate commerce to Congress, according to MediaPost.

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