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Six of eight claims in IBM biometric data privacy suit upheld as dismissal rejected

Six of eight claims in IBM biometric data privacy suit upheld as dismissal rejected

Two items of a motion to dismiss a biometric data privacy lawsuit by IBM have been granted, though a federal judge in Illinois rejected the rest of the motion, Law Street Media reports.

Northern District of Illinois Judge Charles P. Kocoras has ruled that the plaintiffs lack standing for their claim of a violation of the Biometric Information Privacy Act (BIPA) Section 15(a), which requires the publication of a retention schedule for biometric data collected. While violations of Section 15(b), which prohibits data from being collected without consent, creates standing through a procedural or statutory violation, 15(a) does not, according to the judgement. The plaintiffs’ injunctive relief claim was likewise dismissed, leaving five alleged BIPA violations and unjust enrichment in the claim.

IBM also argued that the extraterritoriality doctrine and dormant commerce clause invalidate the plaintiffs’ claims, though Kocoras ruled these arguments are premature. IBM argued that the suit is also invalid because it relates to photographs, which are excluded from BIPA, and that previous judgements in other cases that it is the photographs themselves, rather than processing the data they provide that is excluded, were incorrect. The judge rejected that argument as unpersuasive.

The complaint is based on the use of images gathered from Flickr for the Diversity in Faces dataset, and has been amended by the plaintiffs twice along the way.

Amazon and Microsoft are arguing in complaints alleging their use of the same dataset that BIPA does not apply to algorithm training conducted out of state.

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