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Microsoft wins partial dismissal of biometric data privacy suit, Amazon goes 0-for-2

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A biometric data privacy lawsuit against Microsoft and Amazon can go forward, a federal judge in Seattle has ruled, though with a partial victory for Microsoft, The Seattle Times writes.

Judge James Robart sided with Microsoft in part on its motion to dismiss the suit against it, as he did in March, when he partially granted and partially denied a motion to dismiss the claims against both companies. At the time, Robarts cited the need for additional briefings to clarify the meaning of “otherwise profit from” in Illinois’ Biometric Information Privacy Act’s (BIPA’s) section 15(c), and whether Washington or Illinois law applies to an “unjust enrichment” claim. Microsoft claimed that the “otherwise profiting” from a person’s biometric data means being paid to share it, while the plaintiffs argue that it means the use of the data contributes in any way to revenue.

In the latest decision, Robart ruled that section 15(c) forbids the sharing of biometric data for any benefit, monetary or not, but that the plaintiffs have not established that their data was shared by Microsoft at all.

He also found that Microsoft was correct in arguing that the claim of unjust enrichment is pleaded inadequately under Washington law, but that the two states differ on how harm is defined. Because the claim in question has the ‘most significant relationship’ to Illinois, with three out of five contact factors neutral and two favoring the application of Illinois law, the motion to dismiss the unjust enrichment claim has been denied, and will be heard under Illinois law.

Both claims against Amazon will go forward, after a motion to dismiss both was rejected by Robarts. The difference from Microsoft’s defense is that Robarts ruled that it is reasonable to infer from the Plaintiff’s allegations “that selling Amazon’s products necessarily shares access to the underlying biometric data.”

The companies have so far cooperated on their defense, The Times notes, but their methods may diverge now that the claims remaining against them are different.

The dismissal of the claim against Microsoft based on BIPA 15(c) could pave the way for similar dismissals of biometric data privacy claims against FaceFirst and Google for their use of the Diversity in Faces dataset.

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