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Biometric training data privacy suit to go ahead, but Microsoft and Amazon win partial dismissal

Clarifai facial recognition training data suit dismissed

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A pair of biometric data privacy suits, filed against Microsoft and Amazon, will go ahead after a federal judge in Washington rejected motions to dismiss the near-identical allegations, Reuters reports, but declining to rule on two other motions pending additional briefings.

The lawsuits relate to the use of IBM’s Diversity in Faces dataset to train face biometric algorithms, despite the alleged inclusion of images without the permissions required under Illinois’ Biometric Information Privacy Act (BIPA). Similar allegations have also been filed against FaceFirst and Google.

The motion to dismiss the claims under BIPA’s Section 15(b), which relates to the storage of biometric data, was rejected, while U.S. District Judge James Robart put off a decision on claims under Section 15(c), which covers data sharing, and unjust enrichment, and asked to hear additional briefings. Judge Robart also granted motions to dismiss standalone injunctive relief claims against both companies.

Robart found against arguments by Microsoft and Amazon that BIPA does not have extraterritorial effect, and that the plaintiffs had failed to state a claim. The allegations that the company downloaded the biometric data from IBM and used it in algorithm training are sufficient to trigger BIPA 15(b), according to Robart, even though they had not collected the data directly from subjects. What it means for the companies to “otherwise profit from” the data under Section 15(c) requires further exploration, as does the validity of unjust enrichment claims, he ruled.

Counsel for two of the four named plaintiffs told Reuters that they intend to “aggressively pursue relief” for the proposed class.

“We continue to take privacy seriously, have developed responsible AI principles to guide the development and deployment of our AI technologies, and remain committed to putting these into practice,” a Microsoft representative told Reuters in an email statement.

The cases against FaceFirst, IBM and Google remain pending, after a California judge ruled in February that Google’s case should be heard once IBM’s has settled a number of facts related to the dataset and its distribution.

In a separate case involving biometric training data, a motion to dismiss a proposed class action against Clarifai was granted by an Illinois federal judge, Reuters writes.

The suit was brought by an Illinois resident who used the online dating site OKCupid, which Clarifai allegedly used images from for algorithm training, but the plaintiff failed to show that Clarifai had directed its business to the state, leaving the court without jurisdiction to apply the Illinois law to the company.

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